UK Offence Report

Fraud, etc., in anticipation of winding up

article 170(1) 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The provision has been revoked, but a saving provision keeps it prosecutable for conduct before a stated date.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

1 When a company is ordered to be wound up by the High Court, or passes a resolution for voluntary winding up, any person who, being a past or present officer of the company, has, within the 12 months immediately preceding the commencement of the winding up— a concealed any part of the company’s property to the value of £500 or more, or concealed any debt due to or from the company, or b fraudulently removed any part of the company’s property to the value of £500 or more, or c concealed, destroyed, mutilated or falsified any book or paper affecting or relating to the company’s property or affairs, or d made any false entry in any book or paper affecting or relating to the company’s property or affairs, or e fraudulently parted with, altered or made any omission in any document affecting or relating to the company’s property or affairs, or f pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for (unless the pawning, pledging or disposal was in the ordinary way of the company’s business), shall be guilty of an 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 This is the text as originally made; later amendments are not shown here.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
making a false or misleading statement
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (fraudulently).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: fraudulently.

What would breach article 170(1)?

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. Entering a figure on a form or return that is known to be wrong under the Insolvency (Northern Ireland) Order 1989.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Indictable only — tried in the Crown Court
Maximum fine
£500
Maximum prison (summary)
Not determined

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