UK Offence Report

Production of documents etc.

article 59(2) of The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005

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

2 The citation must explain that– a it is an offence under paragraph 12(3) of schedule 2 to the Act for a person who is cited to attend the Tribunal– i to refuse or fail to attend; and ii to alter, conceal or destroy or refuse to produce, a document which such person is required to produce for the purposes of the proceedings before the Tribunal; b a person need not produce any document if, were it a document that might be produced in any court in Scotland, the person having that document could not be compelled to produce it in such proceedings; c it is a defence under paragraph 12(5) of schedule 2 to the Act for a person charged with contravening paragraph 12(3) to show that the person has a reasonable excuse for such contravention.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

could not be compelled to produce it in such proceedings; c it is a defence under paragraph 12(5) of schedule 2 to the Act for a person charged with contravening paragraph 12(3) to show that the person has a reasonable excuse for such contravention.

What would breach article 59(2)?

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 Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005, 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
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(3) 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
Status not determined
Made
6 October 2005
In force from
14 November 2005
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 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 Act”). These Rules re-enact the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005 (“the previous Rules”) with minor amendments. Part I of these Rules contains introductory provisions. Part II contains rules about applications to the Tribunal under the 2003 Act. In this Part changes are made from the previous Rules in– a rule 6 to remove the requirement on the Clerk of the Tribunal to send a copy of the care plan together with notice of an application for a compulsory treatment order; and b rule 7 in relation to the provision for the making of applications under section 65 of the Act for an interim compulsory treatment order. 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. In this Part changes are made from the previous Rules in: a rule 47(4) to (6) in relation to the procedure for considering representations from parties before making a determination whether or not a document, report or any part of it is not to be disclosed; b rule 48(1) to correct a drafting error; c rule 51(2) in relation to the procedure for giving a relevant person an opportunity to show cause why a direction that the person take no further part in proceedings should not be given; d in rule 55, 47, 68 and 69 to amend the provisions in relation to the appointment of a curator ad litem, and the circumstances in which a curator ad litem may be appointed; e rule 57 to make new provision in relation to alteration of the date, time or place of a hearing; f rule 62(5) in relation to the period of time in which certain expert reports are to be sent to the Tribunal; g rule 63(3) to make new provisions in relation to the right to make representations or to lead or produce evidence; and h rule 66(6) to make provision for the President of the Tribunal to attend any hearing without the agreement of the Convener. These Rules come into force on 14th November 2005. Rule 81 of these Rules revokes the previous Rules on that date. Rule 80 makes transitional provision so that that notwithstanding the revocation of the previous Rules, rule 7(4) to (6) of the previous Rules will continue to apply in relation to certain applications to, and rule 47 and 57(4) of the previous Rules will continue to apply in relation to certain determinations and decisions by, the Tribunal.

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