UK Offence Report

SCHEDULE 5

SCHEDULE 5 of The Open-Ended Investment Companies Regulations 2001

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

8 Where notice of appeal is filed not later than 14 days after the court’s decision, any reference to that decision in sub-paragraphs (5) and (6) is to be construed as a reference to the final determination or withdrawal of that appeal, as the case may be. 19 1 If a person ceasing to hold office as auditor fails to comply with paragraph 18 he is guilty of an offence and liable— a on conviction on indictment, to a fine; b on summary conviction, to a fine not exceeding the statutory maximum.

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 This is the text as originally made; later amendments are not shown here.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 notify or register
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

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

The defence, as drafted

(1), it is a defence for the person charged to show that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence. 20 Section 249(1) of the Act (disqualification of auditor for breach of trust scheme rules) applies to a failure by an auditor to comply with a duty imposed on him by FSA rules as it applies to a breach of trust scheme

What would breach SCHEDULE 5?

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. Not telling the authority about an event the instrument makes notifiable under the Open-Ended Investment Companies Regulations 2001, or telling them after the period allowed has run out.
  2. Assuming a notification made for another purpose, or by somebody else, satisfies this requirement.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
Revoked
Revoked by
The Uncertificated Securities Regulations 2001
Revoked on
26 November 2001
Made
27 March 2001
In force from
Not determined
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made under section 262 of the Financial Services and Markets Act 2000. They make provision for facilitating the carrying on of collective investment by means of open-ended investment companies and regulate such companies. Part I of the Regulations deals with matters of citation, commencement, extent and interpretation of terms used in the Regulations. Part II deals with the formation, supervision and control of an open-ended investment company and the registration of certain details with the Financial Services Authority (“the FSA”). Regulation 5 and Schedule 1 are concerned with the custody of the company’s property and with the company’s depositary, who is the person to whom the company’s property is entrusted. Regulation 6 allows the FSA to make rules in relation to open-ended investment companies. Regulations 12 to 17 relate to the authorisation by the FSA of an open-ended investment company. The FSA must be satisfied that the company will, if formed and authorised, meet the requirements in regulation 15. There is provision for representations to be made against any refusal to authorise a company. Regulations 18 to 20 concern the name used by an open-ended investment company. Regulations 21 and 22 contain provisions requiring a company to seek prior approval from the FSA for certain changes, including changes to its instrument of incorporation. Regulations 23 to 29 confer powers on the FSA to intervene in the affairs of a company once it has been authorised. The FSA may revoke an authorisation, give directions and make applications to the court. Regulation 30 confers power on the Secretary of State and the FSA to appoint inspectors to investigate the affairs of an open-ended investment company and regulations 31 to 33 contain provisions as to winding up and dissolution of such companies. Part III sets out the corporate framework within which an open-ended investment company will operate, as supplemented by rules made by the FSA under regulation 6. Regulations 34 to 36 concern directors and the inspection of their service contracts. Regulation 37 makes provision for general meetings and regulations 38 to 44 concern the capacity of a company and the validity of certain transactions involving its directors. Regulations 45 to 52 contain provisions about the nature of the shares which a company may issue, share certificates, share transfers and the maintenance, closure and rectification of a register of shareholders which must be kept in accordance with Schedule 3. Regulations 53 to 65 concern the operation of an open-ended investment company, including details which must be included in correspondence (regulations 54 and 55), the execution and authentication of documents (regulations 57 to 60), liability and exemptions from liability (regulations 61 to 62), fraudulent trading (regulation 64) and the powers which a company has to make provision for its employees on the cessation or transfer of business (regulation 65). Regulations 66 to 69 and Schedule 5 deal with accounts and auditors. Regulation 70 and Schedule 6 concern the merger and division of open-ended investment companies. Part IV deals with the FSA’s registration functions in relation to open-ended investment companies. The FSA must keep a register of such companies and must allocate registered numbers to them (regulations 71 and 72). The FSA’s records are open to inspection (regulation 75) and it must publish, in the relevant Gazette, notice of the issue or receipt by it of certain documents (regulation 78). Part V contains miscellaneous provisions, including provisions about offences and minor and consequential amendments to primary and secondary legislation. Regulation 85 revokes the Open-Ended Investment Companies (Investment Companies with Variable Capital) Regulations 1996 and makes various consequential provisions.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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