UK Offence Report

Treasury determinations for implementing decisions

regulation 13A(6) of The Banking Coordination (Second Council Directive) (Amendment) Regulations 1993 (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

6 A credit institution which fails to comply with

a determination made under paragraph (1) shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale; but such

a contravention shall not invalidate any transaction.

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 This is the text as originally made; later amendments are not shown here.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 credit institution
Conduct
failing to do something the instrument requires
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 credit 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 regulation 13A(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.

  1. On these words it is an offence to invalidate any transaction.
  2. Not doing what the provision requires under the Banking Coordination (Second Council Directive) (Amendment) Regulations 1993, by the time it requires it to be done.
  3. Doing it, but not in the manner or to the standard the instrument specifies.

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 (1994-01-01); 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
22 December 1993
In force from
1 January 1994
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 amend the Banking Coordination (Second Council Directive) Regulations 1992 to give effect to the adaptations made 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. L368, 30.12.89, p.1) in its application to the European Economic Area by paragraph 16 of Annex IX to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (Cm 2073) as amended by the Protocol adjusting the Agreement signed at Brussels on 17th March 1993 (Cm 2183). The European Economic Area will comprise the territory of the member States of the European Communities together with that of certain members of the European Free Trade Association (EFTA). Within this area there shall be free movement of goods, persons, services and capital to the extent specified in the Agreement. Section 2(1) of the European Economic Area Act 1993 provides for the general substitution on and after the date on which the Agreement comes into force of limitations in enactments by reference to the European Economic Area for limitations by reference to the Communities where the enactments concern a matter to which the Agreement relates. The Agreement, together with the Protocol dated 17th March 1993, enters into force in respect of all the Contracting Parties except Liechtenstein on 1st January 1994. Specific amendments to the 1992 Regulations are needed both for clarity and to give effect to adaptations to the Second Council Directive by the Agreement in its application to the European Economic Area. The 1992 Regulations are stated to apply from 1st January 1994 in relation to the carrying on by credit institutions and financial institutions based in the European Communities of listed activities in a relevant EFTA State and the carrying on by credit institutions and financial institutions based in a relevant EFTA State of listed activities in the European Economic Area (regulation 2(a)). Relevant EFTA States are the member States of EFTA in respect of which the Agreement and the Protocol are to enter into force (regulation 2(c)). A new regulation 2A is inserted in the 1992 Regulations to give effect to paragraph 16(c) of Annex IX to the Agreement under which Iceland is to implement the Second Council Directive by 1st January 1995. Although Iceland is immediately to recognise authorisations granted to credit institutions by the other Contracting Parties, authorisations granted to credit institutions by the Icelandic authorities are not to have EEA—wide validity before the full application of the Directive to Iceland. The expressions “another member State”, “member State” and “relevant EFTA State” in the 1992 Regulations are not to apply to Iceland except in relation to UK—based credit institutions operating in Iceland until the date Iceland notifies its implementation of the Second Council Directive (regulation 2(d)). The Regulations also insert a new regulation 13A in the 1992 Regulations to give effect to the provision in paragraph 16(a) 2(b) of Annex IX to the Agreement concerning the treatment of credit institutions within the European Economic Area which are the subsidiaries of undertakings based in third countries which impose restrictions on credit institutions based in the European Economic Area. The Treasury is empowered, following consultation with the Bank of England, to determine that certain credit institutions authorised in a relevant EFTA State which are not allowed to carry on listed activities in the UK because they have not yet complied with paragraph 1 of Schedule 2 to the 1992 Regulations shall not thereafter be allowed to do so (regulation 2(g)). Determinations are to be made in respect of credit institutions which are the subsidiaries of undertakings based in a third country which is the subject of a decision by the Council or the Commission under article 9.4 of the Second Council Directive. Failure to comply with a determination is to be an offence and the prohibition on unauthorised deposit— taking in section 3(1) of the Banking Act 1987 shall apply to an institution in respect of which a determination is in force (regulation 2(f) and (g)). UK credit institutions which do not notify the Bank of England under Part I of Schedule 11 to the 1992 Regulations of listed activities which they were carrying on in relevant EFTA States before 1st January 1994 will not commit an offence (regulation 2(h)).

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 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