UK Offence Report

Penalty for improper use of “community interest company”

paragraph 44A(1) of SCHEDULE 4 of The Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007

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

1 A company which is not

a community interest company is guilty of an offence if it carries on any trade, profession or business under

a name which includes any of the expressions specified in paragraph (3).

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 This is the text as originally made; later amendments are not shown here.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 company
Conduct
breaching the provision
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 company 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 paragraph 44A(1) of SCHEDULE 4?

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 company carries on any trade, profession or business under a name which includes any of the expressions specified in paragraph (3).
  2. Doing what the provision prohibits, or failing to do what it requires under the Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007.

Penalty

Mode of trial
Not determined
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
29 March 2007
In force from
6 April 2007
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 is the second Commencement Order made under the Companies Act 2006 (c.46) (“the Act”). The Order brings various provisions of the Act into force on 6th April 2007. Article 2(1)(a) brings into force section 2 of the Act (the Companies Acts) subject to a transitional adaptation. Article 2(1)(b) brings into force Part 28 of and Schedule 2 to the Act (takeovers etc). Two existing regimes apply to takeover offers. The Takeovers Directive (Interim Implementation) Regulations 2006 (S.I. 2006/1183) (“the Interim Regulations”), which apply to offers covered by Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on Takeover Bids (O.J. No. L142, 30.4.2004) (“ the Takeovers Directive”), are revoked by article 8 as from 6th April 2007. The repeals of Part 13A of the Companies Act 1985 (c.6) and Part 12 of the Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)), which apply in the case of offers not covered by the Takeovers Directive, are brought into force by this Order as from that date (article 6). Article 7 makes amendments to primary and secondary legislation consequential on Part 28. In relation to takeovers, article 9 and Schedule 6 save the effect of the 1985 Act and the Interim Regulations as follows. Paragraph 1 of Schedule 6 makes provision in relation to squeeze-out and sell-out for non-Takeovers Directive bids, paragraph 2 makes provision in relation to squeeze-out and sell-out for Takeovers Directive bids, and paragraph 3 saves regulation 8(2)(b) of the Interim Regulations in respect of offences committed before 6th April 2007. Article 2(1)(d) brings into force section 1284(1) (extension of the Companies Acts to Northern Ireland) for the purpose of extending to Northern Ireland the provisions on community interest companies contained in Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27) (“the 2004 Act”). The repeal of Part 3 of the Companies (Audit, Investigations and Community Enterprise) Order 2005 (S.I. 2005/1967 (N.I. 17)) (“the 2005 Order”), which made corresponding provision for Northern Ireland and is not yet in force, is brought into force by this Order. Article 7(2) and Schedule 4 amend the 2004 Act, and the Community Interest Company Regulations 2005 (S.I. 2005/1788) made under it, so that they can work alongside the existing Northern Ireland companies legislation pending the implementation of a single UK companies regime. They also make consequential amendments of other enactments. Article 11(2) restores the application to limited liability partnerships of a provision of the 1985 Order the repeal of which had been brought into force by S.I. 2006/3428 without a saving in respect of its application to limited liability partnerships.

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