Criminal and civil sanctions Section 12: Offence of breaching the prohibition or causing or facilitating a breach
This section sets out the offences associated with breaches of the prohibition on dealing provided for in section 1.
	Subsection (1) outlines that directly breaching the prohibition, causing it to be breached or facilitating it to be breached will all be considered as offences under the prohibition.
Anyone who directly breaches the prohibition is committing an offence. This includes carrying out dealing in a prohibited item or carrying out dealing in ivory without an exemption certificate or registration for that ivory item. For example, if an ivory item which meets one of the categories of exemption is sold, but has not been registered or an exemption certificate has not been obtained, then that is an offence under the Act.
It is an offence to carry out dealing in an item without meeting all of the conditions required under an exemption to the prohibition. For example, to sell an item under the musical instrument exemption, the item must qualify as a musical instrument, be pre-1975 and be registered under section 10. If one of these conditions is not met and dealing is undertaken, this is an offence. Actions taken to falsify a registration or certification process, if taken dishonestly and with the intent to defraud, would be considered an offence under the Fraud Act 2006.
Anyone who causes a breach of the prohibition is committing an offence. This applies, for example, to circumstances where the person who breaches the prohibition is acting at the direction of another person or is supported or assisted by another person. In practice, this could apply to a person acting as an auctioneer, or otherwise selling an item on behalf of somebody else.
Anyone who facilitates a breach of the prohibition is committing an offence. This offence would apply to anyone who, whilst not directly engaged in the process of a sale, acted in such a way as to allow that sale, or other form of dealing, to occur. For instance, this could apply to the owners of an online sales forum if they were found not to have taken reasonable steps to ensure that an item was (a) exempt from the ban, and (b) had been registered as such. Further, anyone found to have advertised an item in order to facilitate a sale may be found to be in breach of the offence.
	Subsection (2) outlines how these offences should be applied in situations where mislabelling and/or misidentification of elephant ivory takes place. Efforts have previously been made to circumvent restrictions on elephant ivory trade by deliberately mislabelling elephant ivory, for example as mammoth, hippo or walrus ivory, bone or indeed an inorganic material such as plastic. An offence would be committed if:
the offender knew or suspected the item was made of or contained elephant ivory at the time of the offence being committed; or
the offender should have, for example based on their experience, information available to them or their professional position, known or suspected the item was made of or contained ivory at the time of the offence being committed.
	Subsection (3) provides that an individual, group of individuals or organisation accused of breaching the prohibition, causing or facilitating it to be breached, can rely on the defence that they took all reasonable actions and exercised all due diligence to avoid an offence being committed. Examples of reasonable actions or due diligence may, on a case-by-case basis, include the following:
a buyer of a prohibited ivory may show they had checked that the item had been registered prior to the purchase, and that registration appeared to them to be authentic;
an organisation which listed a prohibited item for sale, for example online or in a sale room, had taken steps to check the item had been registered and that this registration appeared to them to be authentic; or
an organisation which facilitated the sale of a prohibited item could demonstrate that they had taken actions to make sure a person using their service had confirmed they were not using the service to sell illegal ivory, that they monitor the online or physical locations in their control for sales to ensure that they do not contravene this legislation and to have in place systems for reporting illegal or potentially illegal activity if discovered.
	Subsection (4) provides for the criminal sanctions which could be applied to the offences associated with breaching the prohibition. The maximum sanction, applied on conviction on indictment, is imprisonment for up to five years and/or an unlimited fine. This sanction is in line with the current sanctions in place for illegal wildlife trade offences, including on ivory, as outlined in the COTES.
	Subsection (4) specifies that a summary conviction, could be applied to offences under this prohibition. These sanctions cannot exceed the maximum sanctions applicable for summary convictions in each of areas of the Devolved Administrations. The maximum sanctions applied on indictment and on summary convictions are as follows:
Maximum penalty on conviction on indictment
Maximum penalty on summary conviction in England and Wales
Maximum penalty on summary conviction in Scotland
Maximum penalty on summary conviction in Northern Ireland
5 years’ imprisonment, unlimited fine, or both.
12 months’ imprisonment, fine, or both.
12 months' imprisonment, a fine not exceeding the statutory maximum (currently £10,000), or both.
Six months' imprisonment, a fine not exceeding the statutory maximum (currently £5,000), or both.
	While section 12 sets out offences relevant to the Act, breaches under other existing legislation may also be committed through the illegal dealing in ivory, in which case existing offences in the relevant legislation should apply. The following are examples of where this could apply, although is not an exhaustive list:
where the appropriate criteria are met, proceeds obtained through illegal sales of ivory items would be confiscated under the Proceeds of Crime Act 2002;
where there is evidence of serious and organised crime involving ivory sales, the Serious Crime Act 2000 should apply; or
where, information is falsified in order to register an item as exempt or to obtain an exemption certificate, or a registration or certificate is altered or falsified, the Fraud Act 2006 should apply.
	Another example may be the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.
	Subsection (5) sets out that subsection (4)(a) takes account of section 154(1) of the Criminal Justice Act 2003, which has yet to come into force. Subsection (5) ensures that until section 154(1) of the Criminal Justice Act 2003 comes into force, the maximum term of imprisonment under subsection (4)(a) should be read as six months. Once section 154(1) of the Criminal Justice Act 2003 comes into force the maximum period of imprisonment will be increased to 12 months, and subsection (4)(a) of the Act will be correct.