UK Offence Report

Offences and penalties

regulation 8(1) of The Charities and Benevolent Fundraising (Scotland) Regulations 2009

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 A person who fails, without reasonable excuse, to comply with the regulations referred to in paragraph (2) commits an offence and is liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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

1 A person who fails, without reasonable excuse, to comply with the regulations referred to in paragraph (2) commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

What would breach regulation 8(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. On these words an offence is committed where a person fails, without reasonable excuse, to comply with the regulations referred to in paragraph (2).
  2. Doing what the provision prohibits, or failing to do what it requires under the Charities and Benevolent Fundraising (Scotland) Regulations 2009.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), 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
24 March 2009
In force from
1 July 2009
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision for the regulation of fundraising by professional fundraisers, commercial participators and benevolent fundraisers. Regulation 2 sets out the requirements as to the form and content of the agreements required by section 81(1) of the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”), between professional fundraisers or commercial participators and the benevolent bodies they fundraise for. Regulation 3(1) provides that professional fundraisers, commercial participators and benevolent fundraisers must accompany their fundraising with a written statement including information on the benevolent body or on the charitable, benevolent or philanthropic purposes which they are fundraising for, how the fundraising proceeds are to be distributed and whether or not the fundraiser is to be remunerated. This information may be provided orally if the fundraising is in person. Benevolent fundraisers who are volunteers are not required to provide this information when fundraising. Regulation 3(4) provides that benevolent fundraisers who are employees of benevolent bodies or companies connected with benevolent bodies are not required to state whether or not they receive remuneration, if they are fundraising on behalf of benevolent bodies in writing. Regulation 3(5) provides that if a professional fundraiser or commercial participator fundraises on radio or on television, they must also state that any person making a payment of £100 or more by credit or debit card, has a right to have that payment refunded, provided they exercise that right within 7 days of the fundraising. Regulation 3(6) provides that if a professional fundraiser or commercial participator fundraises orally but not by speaking directly to the person to whom it is addressed and in that person’s presence or on radio or television (for example by telephone), they must also state that any person making a payment of £100, or entering an agreement to make a payment of £100 or more has a right to have that payment refunded or to cancel that agreement, provided they exercise that right within 7 days of the fundraising. Regulation 4 requires professional fundraisers and commercial participators to provide further information in relation to their remuneration, in the written statements provided under regulation 3. Where the solicitation or representation is made orally the professional fundraiser or commercial participator must inform the person making the payment that this further information on remuneration is available in writing and provide them with a written copy, if requested. Benevolent fundraisers are not required to provide further information about any remuneration they receive. Regulation 5 gives persons making a payment of £100 or more by debit or credit card, in response to fundraising on TV or radio, or persons making a payment of £100 or more or entering into an agreement to make a payment of £100 or more, in response to fundraising in person but not on TV or radio (eg by telephone), a right to a refund or to cancel any agreement. Regulation 6 requires professional fundraisers and commercial participators to pay money, promises of money or other benevolent contributions to the benevolent body as soon as reasonably practicable after its receipt and not later than 28 days after its receipt. Regulation 7 requires professional fundraisers and commercial participators to make available any book, document or other record which relates to the benevolent body and which are kept for the purposes of the agreement required by section 81(1) of the 2005 Act, to any benevolent body they are party to an agreement with. Regulation 8 provides that it is an offence, liable on summary conviction to a fine not exceeding level 5, to fail without reasonable excuse to comply with the requirements of regulations 2(1), 3(1), (5) and (6), 4(1) to (4), 5(5), 6 or 7(1).

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 “commits an offence”; the provision states liability on summary conviction
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