UK Offence Report

False representations, etc.

paragraph 19A(1) of SCHEDULE 1 of The Insolvent Partnerships (Amendment No. 3) Order (Northern Ireland) 2003

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

1 If, for the purpose of obtaining the approval of the members or creditors of an insolvent partnership or of the members or creditors of any of its members to a proposal for a voluntary arrangement in relation to the partnership or any of its members, a person who is an officer of the partnership or an officer (which for this purpose includes a shadow director) of a corporate member in relation to which a voluntary arrangement is proposed – a makes a false representation, or b fraudulently does, or omits to do, anything, 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 This is the text as originally made; later amendments are not shown here.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
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 (for the purpose of obtaining, 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, for the purpose of obtaining.

What would breach paragraph 19A(1) of SCHEDULE 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 Insolvent Partnerships (Amendment No. 3) Order (Northern Ireland) 2003.
  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
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
Status not determined
Made
23 December 2003
In force from
2 February 2004
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.

This Order amends the Insolvent Partnerships Order (Northern Ireland) 1995 (S.R. 1995 No. 225) (the “1995 Order”). The following are the main changes made to the 1995 Order: Article 3 makes a change to the definition of the expression “act as insolvency practitioner” in Article 3 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) as modified by Article 14 of the 1995 Order in relation to insolvent partnerships. It provides for acting as a nominee in a voluntary arrangement in relation to an insolvent partnership to be included within that expression. Article 4 amends Article 4(1) of the 1995 Order, the amended Article applies Part II of the Insolvency (Northern Ireland) Order 1989, together with Schedule Al to that Order, to insolvent partnerships. Part II and certain provisions of Schedule Al are set out in modified form in Schedule 1 to this Order. Schedule Al to the Insolvency (Northern Ireland) Order 1989, introduced by the Insolvency (Northern Ireland) Order 2002 (S.I. 2002/3152 (N.I. 6)), provides for a moratorium for small companies in financial difficulty. Article 5 provides that Article 19 of the 1995 Order does not affect the moratorium under paragraph 23 of Schedule Al to the Insolvency (Northern Ireland) Order 1989. Article 6 and Part I of Schedule 1 make amendments to the existing partnership voluntary arrangement (PVA) procedure set out in Schedule 1 to the 1995 Order which is currently applied to insolvent partnerships. The changes made include technical amendments, making it an offence for an officer of a partnership or of a corporate member to make false representations in order to obtain the approval of a voluntary arrangement (for the insolvent partnership or its members). The introduction of this offence brings the existing PVA procedure into line with that provided for companies in the new moratorium procedure introduced by the Insolvency (Northern Ireland) Order 2002. By virtue of the insertion of Article 14A (as modified) into that Schedule it also makes the new moratorium for small companies mentioned above available to insolvent partnerships. Article 7 provides for the expression “partnership” to include a partnership in relation to which an administration order may be made by virtue of the Council Regulation (EC) No. 1346/2000 of 29th May 2000 on insolvency proceedings (a similar provision is included in relation to partnership voluntary arrangements in modified Part II of the Order). It also provides that the amendments made to Articles 23 and 24 of the Insolvency (Northern Ireland) Order 1989 by Article 7 of the Insolvency (Northern Ireland) Order 2002 (which restricts the exercise of the right of peaceable re-entry by landlords or others in relation to property let to a company) are applied (as modified) to partnerships. The Insolvency (Northern Ireland) Order 2002 amended the Insolvency (Northern Ireland) Order 1989 to provide that where a voluntary arrangement does not have effect at the end of the moratorium, creditors of a company may petition for its winding up. Articles 8 and 9 apply this new ground for the making of a winding up order to insolvent partnerships and for the making of winding up orders or bankruptcy orders against their members, as the case may be. Article 10 provides for the replacement of Forms 5, 6 and 7 in the 1995 Order with amended forms. The amendment provides for the new ground for making winding up orders or bankruptcy orders. The new forms are to be found in Schedule 2 to this Order. Article 11 makes transitional provisions for the PVA moratorium procedure and for the exercise of landlord’s rights of re-entry where a partnership is subject to an administration order. The provisions are similar to those provided for companies. The cost to business of compliance with the provisions of the Insolvency (Northern Ireland) Order 2002 is detailed in the Regulatory Impact Assessment prepared for that Order. Copies of the Assessment are available from the Legislation Unit, the Insolvency Service, Fermanagh House, Belfast BT2 8NJ and from the Department’s website @www.detini.gov.uk under “Publications”.

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