UK Offence Report

Consequence of notice under Article 167

article 168(6) of The Insolvency (Northern Ireland) Order 1989

The provision has been revoked, but a saving provision keeps it prosecutable for conduct before a stated date. A person can still be charged with something it is no longer an offence to do.

What the provision says

6 If a person without reasonable excuse contravenes paragraph (5), he shall be guilty of an offence and, for continued contravention, he shall be guilty of a continuing offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised); other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

The defence, as drafted

6 If a person without reasonable excuse contravenes paragraph (5), he shall be guilty of an offence and, for continued contravention, he shall be guilty of a continuing offence.

What would breach article 168(6)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Insolvency (Northern Ireland) Order 1989, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Revoked, but still prosecutable
Revoked by
Solicitors (Northern Ireland) Order 1976
Made
19 December 1989
In force from
Not determined
Extent
Not stated

How this was established: revoked, but a saving provision keeps the offence prosecutable for conduct before the stated date.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order— a re-enacts with amendments the provisions of the Companies (Northern Ireland) Order 1986 relating to the winding up of companies (including the winding up of companies that are not insolvent, and of unregistered companies); b makes new provision for voluntary arrangements which, in certain circumstances, may be made by companies with the agreement of creditors with the intention of avoiding an insolvent winding up; c re-enacts with amendments the provisions relating to deeds of arrangement; d makes new provision for the insolvency and bankruptcy of individuals; e provides for revised preferential debts in company and personal insolvency; f makes new provision with respect to the functions and qualifications of insolvency practitioners and restricts the officers in insolvency to qualified persons; g makes provision for the public administration of insolvency; h provides for the penalisation and redress of malpractice and wrongdoing; i makes provision for the avoidance of certain transactions at an undervalue; and j repeals the procedure of winding up of companies subject to the supervision of the High Court.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source