Disqualification of undischarged bankrupt

article 41(1) of The Insolvency (Northern Ireland) Order 1989

Revoked, but still prosecutable
Strict liability
Corporate, financial services, company law, employment, charity, electoral and tax

The provision has been revoked, but a saving provision keeps it prosecutable for conduct before a stated date.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 If a person being an undischarged bankrupt acts as receiver or manager of the property of a company on behalf of debenture holders, he 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 This is the text as originally made; later amendments are not shown here.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: breaching the provision
Fault element: Strict liability
Burden of proof: No statutory defence — prosecution proves everything

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.

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

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

What would breach article 41(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.

Doing what the provision prohibits, or failing to do what it requires under the Insolvency (Northern Ireland) Order 1989.

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.

Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
Fraud, bribery and money laundering offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 October 2014
Covers fraud, false accounting, bribery and money laundering, including offences committed by organisations.
Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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 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

Corrupt inducement affecting appointmentarticle 139
Notification that company is in liquidationarticle 159(2)
Information as to pending liquidationsarticle 162(2)
Dissolution (voluntary winding up)article 166(4)
Consequence of notice under Article 167article 168(6)
Dissolution otherwise than under Article 167article 169(5)
Fraud, etc., in anticipation of winding uparticle 170(1)
Fraud, etc., in anticipation of winding uparticle 170(2)
Fraud, etc., in anticipation of winding uparticle 170(5)
Transactions in fraud of creditorsarticle 171(1)
Misconduct in course of winding uparticle 172(1)
Misconduct in course of winding uparticle 172(2)

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Insolvency (Northern Ireland) Order 1989 Every offence this instrument creates, and its explanatory note
Corporate, financial services, company law, employment, charity, electoral and taxOther offences on the same subject
Offences created in 1989