UK Offence Report

Attendance of witnesses

article 61(3) of The Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

3 The citation must explain that– a it is an offence under paragraph 12 of schedule 2 to the Act to refuse or fail, without reasonable excuse, to comply with it; b a person need not give evidence as a witness if the person could not be compelled to give that evidence in proceedings in any court in Scotland.

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 This is the text as originally made; later amendments are not shown here.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
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

er paragraph 12 of schedule 2 to the Act to refuse or fail, without reasonable excuse, to comply with it; b a person need not give evidence as a witness if the person could not be compelled to give that evidence in proceedings in any court in Scotland.

What would breach article 61(3)?

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 what the provision prohibits, or failing to do what it requires under the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to paragraph 12 of schedule 2 to the Act.

penalty is that of the referenced enactment; not stated in this instrument.

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
Revoked by
The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005
Revoked on
14 November 2005
Made
25 August 2005
In force from
5 October 2005
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

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

These Rules prescribe the practice and procedure to be followed in proceedings before the Mental Health Tribunal for Scotland created under section 21 of, and schedule 2 to, the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (“the 2003 Act”). The Rules come into force on 5th October 2005. Part I of these Rules contains introductory provisions. Part II contains rules about applications to the Tribunal under the 2003 Act. Part III contains rules about appeals to the Tribunal, under or by virtue of the 2003 Act. Part IV contains rules about references to the Tribunal under the 2003 Act. Part V contains rules about reviews by the Tribunal under section 101(2) or 165(2) of the 2003 Act of certain determinations by a patient’s responsible medical officer. Part VI provides that these Rules may be applied by the Tribunal to cases remitted to the Tribunal by the court under section 324(5)(b)(ii) of the 2003 Act for consideration anew. Part VII contains general provisions which apply to cases before the Tribunal under these Rules.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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