UK Offence Report

Solicitors (Scotland) Act 1980

paragraph 2(3) of SCHEDULE of The Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003

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

Altering, etc. documents required to be produced under section 64C 64CB

1 A person commits an offence if he intentionally alters, suppresses or destroys

a document which he has been required to produce by

a notice under section 64C(1).

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 This is the text as originally made; later amendments are not shown here.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
Requires proof of a state of mind
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (intentionally).

“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: mens rea word in the offence-creating words: intentionally; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

y person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 64C(1). 2 An application under subsection (1) shall include details of the possible failure which the Office of Fair Trading considers has occurred. 3 In enquiring into a case under subsection (1), the court shall hear a

What would breach paragraph 2(3) of SCHEDULE?

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 intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 64C(1).
  2. Doing what the provision prohibits, or failing to do what it requires under the Enterprise Act 2002 (Consequential and Supplemental Provisions) Order 2003.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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
Status not determined
Made
28 May 2003
In force from
20 June 2003
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes consequential amendments in connection with the commencement of the provisions of the Enterprise Act 2002 (EA 2002). Article 2 gives effect to the amendments, repeals and revocations contained in the Schedule to this Order. Article 3(1) makes savings in relation to certain provisions for the purposes of water merger references by the Secretary of State under the Water Industry Act 1991 (WIA 1991) where the relevant Fair Trading Act 1973 (FTA 1973) and related provisions will continue to apply until the amendments to the WIA 1991, made by the EA 2002, come into force. Article 3(2) makes a saving in relation to the revocation of provisions in the Competition Act 1998 (Director’s rules) Order 2000 to be consistent with the saving in Article 5 of the Enterprise Act 2002 (Commencement No.3, Transitional and Transitory Provisions and Savings) Order 2003 (S.I.2003/1397 (c. 60)) concerning the amendments made by section 17 of the EA 2002 to the provisions concerning third party appeals in section 47 of the Competition Act 1998. The savings ensure that any application to the Office of Fair Trading or appeal to the Competition Appeal Tribunal in relation to a decision made before 20th June 2003 may be proceeded with in accordance with the old law and old Director’s rules notwithstanding the commencement of section 17. In relation to the Schedule, paragraph 1 adds the Competition Appeal Tribunal to Schedule 4 of the Parliamentary Commissioner Act 1967 making it a relevant tribunal for the purposes of section 5(7) of that Act. Paragraph 2 amends the Solicitors (Scotland) Act 1980. Under section 64C(1) the Office of Fair Trading (OFT) can issue a notice requiring the production of documents for the purpose of investigating a matter under section 64A of that Act. Section 64C(3) of that Act applies section 85(5) to (8) of the FTA 1973 (contempt of court provisions) to enforce such notices. The amendments repeal the cross-reference to section 85 FTA 1973 and reproduce these provisions with some modifications. Similar amendments were made in Schedule 14 to the Companies Act 1989, section 46 of the Courts and Legal Services Act 1990 and Schedule 4 to the Broadcasting Act 1990 by virtue of Schedule 25 to the EA 2002. Similar amendments are made in this Order by virtue of paragraph 12 of the Schedule to this Order in relation to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, paragraph 15 in relation to the Companies (Northern Ireland) Order 1990, paragraph 17 in relation to the EEC Merger Control (Distinct Market Investigations) Regulations 1990 and in paragraph 43 in relation to the Uncertificated Securities Regulations 2001. Paragraphs 3, 4, 8, 19, 20, 22, 25, 28 and 44 revoke or repeal provisions that refer to FTA 1973 provisions which have been repealed by the EA 2002. Paragraph 5 repeals certain definitions in section 36(1) of the Airports Act 1986 which are no longer required following amendments made by the EA 2002. Paragraph 6 makes consequential amendments to section 33 of the Channel Tunnel Act 1987 following the repeal of section 6 FTA 1973 by the EA 2002. Paragraphs 7 and 11 update the Companies (Disclosure of Information) (Designated Authorities) Order 1988 and Financial Services (Disclosure of Information) (Designated Authorities) (No 6) Order 1989 by adding references to the EA 2002. Paragraph 9 consequentially amends section 100 of the Electricity Act 1989 so that electricity will be treated as goods for the purposes of the EA 2002. Paragraph 10 amends paragraph 4A of Schedule 14 to the Companies Act 1989 so as to include Scottish partnerships in the contempt of court provisions in that paragraph. Paragraph 13 rectifies a numbering error in section 50(2)(m) of the Courts and Legal Services Act 1990. Paragraph 14 repeals section 197(5) of the Broadcasting Act 1990 which refers to information disclosure provisions which have been repealed by the EA 2002 and amends paragraph 8A of Schedule 4 so as to include Scottish partnerships in the contempt provisions of that paragraph. Paragraph 16 revokes regulations 1 and 3 of the EEC Merger Control (Consequential Provisions) Regulations, which are no longer required because the provisions of the EA 2002 are adequate. Paragraph 18 amends sections 10 and 33 of the New Roads and Street Works Act 1991 so that a person authorised to charge a toll shall be deemed to supply a service for the purposes of the EA 2002. Paragraph 21 repeals section 66(5) of the Railways Act 1993 which refers to a provision of the FTA 1973 that has been repealed by the EA 2002. It also consequentially amends section 67(7) to make it consistent with amendments made by the EA 2002. Paragraphs 23, 26, 27, 29, 30, 33, 34 and 42 revoke references to the FTA 1973 which are in the restrictions on disclosure of information provisions of the legislation referred to in those paragraphs. Paragraph 24 consequentially amends the Channel Tunnel Rail Link Act 1996 to make it consistent with amendments made by the EA 2002. Paragraph 31 amends paragraph 15 of Schedule 2 to the Copyright and Rights in Databases Regulations 1997 so as to refer to the enforcement powers in the EA 2002 and the Enterprise Act 2002 (Protection of Legitimate) Interests Order 2003. These amendments are similar to those amendments made by the EA 2002 to section 144 of the Copyright, Designs and Patents Act 1988 in relation to licences granted by the owner of copyright, but they are in relation to database right. Paragraphs 32 and 39 repeal/revoke provisions that are no longer relevant because of the EA 2002. Paragraph 35 updates Part 2 of Schedule 1 to the Telecommunications (Licence Modification) (Standard Schedules) Regulations 1999 so there is reference to the EA 2002. Paragraph 36 amends the Water Appointment (Competition Commission) Regulations 1999 which set out the procedures in relation to Competition Commission references under section 12 of the WIA 1991 for the determination of matters arising under an instrument of appointment of a water or sewerage undertaker. The amendments bring the procedure for section 12 WIA 1991 references in line with the procedures for section 14 WIA 1991 references, which were amended by the EA 2002. Paragraph 37 amends the Transport Act 2000 so that there is a reference to the EA 2002. Paragraph 38 consequentially amends the Competition Act 1998 (Director’s rules) Order 2000 to take account of the amendments made to the third party appeals provisions in the Competition Act 1998. Paragraph 40 consequentially amends the Utilities Act 2002 (Supply of Information) Regulations 2000 as the monopoly references referred to in regulation 5 have been repealed and replaced with Part 4 of the EA 2002. Paragraph 41 amends the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 to make them consistent with the Competition Act 1998 as amended by the EA 2002.

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 “commits 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.

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