UK Offence Report

Return by the office-holder

article 5(7) of The Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 1997 (revoked)

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

7 If an office-holder without reasonable excuse fails to comply with the duty imposed by paragraph (5), he is guilty of an offence and—

a on summary conviction of the offence, is liable to

a fine not exceeding level

3 on the standard scale, and

b after continued contravention, is liable to

a daily default fine; that is to say, he is liable on

a second or subsequent summary conviction of the offence to

a fine of one-tenth of level

3 on the standard scale for each day on which the contravention is continued (instead of the penalty specified in sub-paragraph (a)).

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 This is the text as originally made; later amendments are not shown here.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
failing to do something the instrument requires
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).

The defence, as drafted

7 If an office-holder without reasonable excuse fails to comply with the duty imposed by paragraph (5), he is guilty of an offence and— a on summary conviction of the offence, is liable to a fine not exceeding level 3 on the standard scale, and b after continued contravention, is liable to a daily default

What would breach article 5(7)?

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. Not doing what the provision requires under the Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 1997, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

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
Status not determined
Made
25 November 1997
In force from
1 January 1998
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

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

These Rules revoke and replace the Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 1991 (S.R. 1991 No. 368) (“the 1991 Rules”) subject to transitional and saving provisions. The Rules make provision for the manner in which a voluntary liquidator, administrative receiver or administrator of a company, (“the office-holder”), is to make a report to the Department of Economic Development (“the Department”), under Article 10(3) of the Companies (Northern Ireland) Order 1989 (“the Order”) in relation to any person who has been a director or shadow director of an insolvent company and whose conduct appears to the office-holder to be such that he is unfit to be concerned in the management of a company. The Rules also provide for returns to be made to the Department by office-holders, in respect of directors or shadow directors of an insolvent company, where a report has not already been made in respect of such persons under Article 10(3) of the Order. Rules 4 and 5 apply in respect of reports and returns to be made where the relevant insolvency proceedings have commenced (that is, when one of the following events has occurred: the company has passed a resolution for it to be voluntarily wound up; an administrative receiver has been appointed; or an administration order has been made) on or after 1st January 1998. Rule 4, taken with rule 6, provides that reports under Article 10(3) of the Order should be made in Form D1 set out in the Schedule or in a substantially similar form, with any necessary variations. Rule 5, taken with rule 6, provides for a return to be made in Form D2 set out in the Schedule or in a substantially similar form, with any necessary variations, in relation to every person who has been a director or shadow director of an insolvent company on, or within the three years prior to, the commencement of the relevant insolvency proceedings. The return is required to be made by the office-holder in office one week before the end of six months after the commencement of those insolvency proceedings, and by an office-holder who vacates office during that period, except where he has made a report under rule 4 covering every such person. Rule 7 enables the Department or the official receiver to apply to the High Court to enforce compliance by the office-holder with a requirement under Article 10(4) of the Order to furnish information and books, papers and other records relevant to the conduct of a person as a director. Rule 8 contains transitional and saving provisions under which rules 3 and 4 of the 1991 Rules (which made provision for purposes similar to those for which rules 3 and 4 of these Rules provide) remain in operation, with modifications relating to the forms to be used, for cases where the relevant insolvency proceedings commenced on or after 1st October 1991 and before 1st January 1998. By virtue of the operation of Article 2A of the Order, the Order applies to incorporated friendly societies within the meaning of the Friendly Societies Act 1992 (c. 40) as it applies to companies and these rules apply similarly. Important changes made by these Rules are that:— a only one forms is now prescribed for a report made under Article 10(3) of the Order and one, for a return to be made under the Rules; b every office-holder is now required by rule 5(5) to make a return to the Department in accordance with rule 5 (except where he has made a report as described under rule 5(6).

Read the full note and every offence in this 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