Amendment of regulation 7

regulation 6 of The Regulation of Care (Miscellaneous Amendments) (Scotland) Regulations 2009

Status not determined
Strict liability
Education, social security, pensions and public services

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

6 In regulation 7 (fitness of managers), for paragraph (2)(b) substitute– b a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine, and who is, in the reasonable opinion of the provider of the care service, having regard to the circumstances of the conviction, unfit to be a manager in relation to a care service; .

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 This is the text as originally made; later amendments are not shown here.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: No statutory defence — prosecution proves everything

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 states no defence, so the prosecution bears the burden on every element of the offence.

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

What would breach regulation 6?

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.

Doing what the provision prohibits, or failing to do what it requires under the Regulation of Care (Miscellaneous Amendments) (Scotland) Regulations 2009.

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.

Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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: 3 February 2009
In force from: 1 April 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

These Regulations amend the Regulation of Care (Registration and Registers) (Scotland) Regulations 2002 (S.S.I. 2002/115), the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 (S.S.I. 2002/114) and the Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003 (S.S.I. 2003/150). The regulations provide consistency in all regulations made under section 29((1) and (2)(a) and (b) of the Regulation of Care (Scotland) Act 2001 in respect of persons who are fit to register a care service, to provide a care service, act as manager of a care service or be employed in a care service. The regulations also give providers of care services an element of discretion in considering persons fit to manage or be employed in a care service, where those persons have been convicted of an offence. Regulations 3 and 4 amend Regulation 4 of S.S.1. 2002/115 to provide consistency with S.S.I. 2002/114. Regulations 6 and 7 give discretion to care home providers to consider a person fit to manage or be employed in the delivery of a care service, despite that person having a conviction. Regulations 9 to 13 amend S.S.I. 2003/150 to ensure consistency with S.S.I. 2002/114 and 2002/115 as amended by these Regulations.

Read the full note and every offence in this instrument

Other offences in the same instrument

– d a person to whom regulation 6(2)(a) applies; or e a person who has been convicted whether in the United…regulation 7

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 0.60.

Basis: the provision says the conduct is “punishable”
Confidence: 0.60 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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Regulation of Care (Miscellaneous Amendments) (Scotland) Regulations 2009 Every offence this instrument creates, and its explanatory note
Education, social security, pensions and public servicesOther offences on the same subject
Offences created in 2009