UK Offence Report

SCHEDULE 11

SCHEDULE 11 of The Banking Coordination (Second Council Directive) Regulations 1992 (revoked)

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

3 An institution which fails to comply with sub-paragraph (1) or (2) above shall be guilty of an offence and 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 This is the text as originally made; later amendments are not shown here.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 institution
Conduct
dealing with funds or making them available in breach of sanctions
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 institution 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 SCHEDULE 11?

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. Moving, converting or paying away funds that belong to a designated person under the Banking Coordination (Second Council Directive) Regulations 1992, without a licence from the Treasury.
  2. Making funds or economic resources available to a designated person - which includes paying a third party who will pass on the benefit.
  3. Dealing with an asset in ignorance of the designation is still caught where the provision imposes no knowledge requirement; check the fault element stated below before assuming otherwise.

Penalty

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

this is the level 5 value when the instrument came into force (1993-01-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
16 December 1992
In force from
1 January 1993
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 give effect to the Second Council Directive 89/646/EEC on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ No. L386, 30.12.89, p.1), and to certain provisions of Council Directive 77/780/EEC (OJ No. L322, 17.12.77, p.30), which is amended by the Second Council Directive. They also give effect to the Council Directive 92/30/EEC on the supervision of credit institutions on a consolidated basis (OJ No. L110, 28.4.92, p.52). The Regulations come into force on 1st January 1993. Part I of the Regulations defines various words and expressions for the purposes of the Regulations. Part II of the Regulations makes provision for the recognition of certain credit institutions authorised in other member States, and of certain subsidiaries of such institutions, for the purposes of carrying on listed activities in the United Kingdom. “Listed activities” are the activities which are set out in Schedule 1. Subject to compliance with the notification requirements contained in Schedule 2, nothing in certain specified provisions of the Banking Act 1987 (c. 22), the Financial Services Act 1986 (c. 60), the Consumer Credit Act 1974 (c. 39) and the Insurance Companies Act 1982 (c. 50) is to prevent a “European institution” (regulation 3) from carrying on in the United Kingdom, whether by the provision of services or the establishment of a branch, any listed activity which it is authorised or permitted to carry on in its “home state” (regulation 5). Certain offences in connection with carrying on listed activities and the establishment of branches are created by regulations 5 and 6. There are requirements concerning changes to the “requisite details” of a branch of a European institution (regulation 6(2)). Prohibitions and restrictions on a European institution in relation to carrying on listed activities may be imposed by the Bank of England (regulations 8 to 12), the Securities and Investments Board (regulations 15 to 17) and the Director General of Fair Trading (regulations 18 and 19), in the circumstances and in accordance with the conditions set out in the Regulations. Schedules 3, 4 and 5 make supplemental provision in connection with such prohibitions and restrictions imposed by the Bank, the Board and the Director General respectively. The Bank (regulation 8) and the Board (regulation 14) also have certain duties to prepare for supervision when a European institution is establishing a branch in the United Kingdom pursuant to the Regulations. Part III of the Regulations makes provision for the carrying on of listed activities in other member States by “UK Institutions”, which means certain credit institutions (“UK authorised institutions”) which are authorised under the Banking Act or Building Societies Act, and certain subsidiaries (“UK subsidiaries”) of such institutions (regulation 20). For the purposes of the Regulations, a UK authorised institution is authorised to carry on in the UK any listed activity which it is lawful for it to carry on in the UK; a UK subsidiary is permitted to carry on in the UK any listed activity which it is lawful for it to carry on, and it is carrying on in the UK (regulation 21). Subject to certain qualifications relating to UK subsidiaries, a UK institution is not to carry on in another member State by the provision of services any listed activity which it is authorised or permitted to carry on in the UK, or establish a branch for the purpose of carrying on such an activity, unless the notification requirements of Schedule 6 have been complied with (regulation 22). There are also requirements concerning changes to the “requisite details” of a branch of a UK institution established in another member State. The “UK authority” (regulation 20(7))—which will be the Bank of England or the Building Societies Commission—is given powers to impose a restriction on the carrying on in the UK of any listed activities by a UK subsidiary (regulations 23 and 24), and Schedule 7 makes supplemental provision in that regard. Part IV of the Regulations amends the Banking Act 1987 in relation to credit institutions authorised by the Bank of England. The principal changes relate to applications for authorisation (regulation 25), “own funds” and initial capital require ments for authorisation (regulation 27), powers of revocation, including powers in relation to the carrying on of listed activities without having given the Bank prior notice (regulation 28), powers of revocation following information from a supervisory authority in another member State (regulation 29), implementation of certain EC decisions relating to third countries (regulation 32), holdings in credit institutions (regulations 31, and 33 to 35), information and investigations (regulations 36 and 37), and disclosure of information (regulations 38 to 42). Further amendments to the Banking Act 1987 are made by Schedule 8, in particular in relation to European institutions. Part V of the Regulations amends the Financial Services Act 1986. The principal changes relate to membership of self-regulating organisations (regulation 48), applica tions for, and grant and refusal of, authorisation under that Act (regulations 49 and 50), and reciprocal facilities for banking business (regulation 53). Further amendments to the Financial Services Act 1986 are made by Schedule 9, in particular in relation to European institutions. Part VI of the Regulations amends the Consumer Credit Act 1974. The principal changes relate to the effect of standard licences (regulation 57), the grant of standard licences (regulation 58), conduct of business (regulation 59), disclosure of information (regulation 62), and modification of subordinate legislation in relation to European institutions (regulation 63). Part VII of the Regulations amends the Insurance Companies Act 1982, principally in relation to the withdrawal of authorisation under that Act of a European subsidiary (regulation 64), and the application of Part II of the Act to a European institution (regulation 65). Part VIII of the Regulations amends the Building Societies Act 1986. The principal changes relate to the establishment of building societies (regulation 67), minimum capital requirements (regulation 68), powers in respect of “qualifying holdings” in building societies (regulations 68 to 70 and 72), revocation powers, including powers in relation to the carrying on of listed activities without having given the Building Societies Commission prior notice (regulation 71), powers of revocation following information from a supervisory authority in another member State (regulation 74), disclosure of information (regulations 76 and 77), and accounting records and systems of business control (regulation 78). Schedule 2 sets out procedural requirements as respects European institutions relating to the carrying on in the UK of listed activities by the provision of services, the establishment of a branch, and changes to the requisite details of a branch. It also specifies the procedure whereby cancellation of compliance with notification require ments by a European subsidiary may be effected. Schedule 6 sets out procedural requirements as respects UK institutions relating to the carrying on in another member State of listed activities by the provision of services, the establishment of a branch, and changes to the requisite details of a branch. It also specifies the procedure whereby cancellation of compliance with notification require ments by a UK subsidiary may be effected. Schedule 10 contains minor and consequential amendments to primary and secondary legislation. Schedule 11 contains transitional provisions and savings, making further amendments to the Banking Act 1987, the Financial Services Act 1986, and the Building Societies Act 1986.

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 0.92.

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