UK Offence Report

Attendance of witnesses and recovery of documents

paragraph 7(4) of SCHEDULE 3 of The Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993

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

4 Every document containing

a requirement under paragraph (1) shall contain

a reference to the fact that, under paragraph 1(7) of Schedule

9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to

a fine, and the document shall state the amount of the current maximum fine.

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 This is the text as originally made; later amendments are not shown here.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 comply with a notice or direction
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

aragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

What would breach paragraph 7(4) of SCHEDULE 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. On these words an offence is committed where a person without reasonable excuse fails to comply with any such requirement.
  2. Being served with a notice under the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

'to a fine' with no stated maximum.

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
17 November 1993
In force from
16 December 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 Regulation) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which come into force on 16 December 1993, replace the regulations which establish industrial tribunals. The Regulations contain, in Schedules 1 to 5, new rules of procedure for proceedings before industrial tribunals which replace the existing rules of procedure. The Regulations apply to proceedings in Scotland. The rules in the Schedules apply to the following proceedings Schedule 1—all proceedings other than those to which Schedules 3, 4 and 5 apply or to which separate rules of procedure made under any enactment apply, Schedule 2—proceedings involving a claim for equal pay for work of equal value under the Equal Pay Act 1970 (the rules in Schedule 2 are complementary to those in Schedule 1 which also applies to these proceedings); Schedule 3—appeals against assessments to industrial training levy under levy orders made under the Industrial Training Act 1982; Schedule 4—appeals against improvement notices and prohibition notices served under the Health and Safety at Work etc. Act 1974; Schedule 5—appeals against non-discrimination notices served under the Sex Discrimination Act 1975 or the Race Relations Act 1976. The Regulations and rules incorporate provisions which implement or take account of the following recent provisions of primary legislation— a sections 128(2A), (2B), (2C), (2D), (2E) and (2F) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act”), inserted by sections 36(1) and (2) of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”), which specify when a tribunal is to consist of three persons and when it is to consist of only a chairman; b section 128(6) of the 1978 Act, inserted by sections 36(1) and (3) of the 1993 Act, which enables a Minister of the Crown, on grounds of national security, to direct tribunal proceedings to be heard and determined by the President of Industrial Tribunals (Scotland); c paragraph 1(4A) of Schedule 9 to the 1978 Act (“Schedule 9”), inserted by paragraph 6(a) of Schedule 7 to the 1993 Act, which enables a Minister of the Crown, on grounds of national security, to direct a tribunal to sit in private; d paragraph 1(5A) of Schedule 9, inserted by section 40 of the 1993 Act (restriction of publicity in cases involving sexual misconduct); e paragraph 1A of Schedule 9, inserted by section 20 of the Employment Act 1989 (c. 38), which enables regulations to provide for tribunals to carry out pre-hearing reviews and, on such a review, to require a party to pay a deposit not exceeding £150 as a condition of the party continuing to participate in the proceedings; and f paragraph 1B of Schedule 9, inserted by paragraph 28(c) of Schedule 8 to the 1993 Act, which enables regulations to provide for tribunals to hear and determine issues relating to the entitlement of parties to contest the proceedings before hearing and determining the proceedings as a whole. In addition, the rules have been modernised and amended to introduce a number of improvements to the procedures contained in the superseded rules. The Regulations and rules will apply to all proceedings before industrial tribunals as from 16 December 1993, whenever the proceedings were commenced. The Regulations contain transitional provisions.

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 0.72.

Basis
the provision states liability on summary conviction; the provision states a penalty in older drafting
Confidence
0.72 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