UK Offence Report

Statement that a company is in administration

regulation 4(1) of The Companies (Trading Disclosures) (Insolvency) Regulations 2008

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

2 Any of the following persons commits an offence if without reasonable excuse the person authorises or permits

a contravention of sub-paragraph (1)—

a the administrator,

b an officer of the company, and

c the company.

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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
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

2 Any of the following persons commits an offence if without reasonable excuse the person authorises or permits a contravention of sub-paragraph (1)— a the administrator, b an officer of the company, and c the company.

What would breach regulation 4(1)?

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. Doing the thing the provision prohibits under the Companies (Trading Disclosures) (Insolvency) Regulations 2008, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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
16 July 2008
In force from
1 October 2008
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 further implement Article 1.5 of Directive 2003/58/EC of the European Parliament and the Council of 15th July 2003 amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of insolvency (O.J. L221, 4.9.2003, p.13). Regulations 2, 3 and 4 amend the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 so as to include websites and documents in electronic form in provisions requiring the fact that a company is in administrative receivership (or, in Scotland, receivership) or administration, or that a moratorium from creditors is in force, to appear on correspondence, publications and other documents (including order forms). Where the company is in administrative receivership (or, in Scotland, receivership) or a moratorium is in force, the limitation of the requirement to documents on which the name of the company appears is removed (there is already no such requirement where the company is in administration). Regulation 5 amends section 188 of the 1986 Act and Article 159 of the 1989 Order (as already amended by regulation 7 of the Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 (S.I. 2006/3429)) so as to include orders for services among the documents on which the fact that a company is being wound up must appear and remove the limitation of the requirement to documents on which the name of the company appears. A full Impact Assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen beyond that of the Companies (Registrar, Languages and Trading Disclosures) Regulations 2006. Copies of the Impact Assessment produced for those Regulations can be obtained from Corporate Law and Governance, Department for Business, Enterprise and Regulatory Reform, 1 Victoria Street, London, SW1H 0ET or from its website. Copies were placed in the libraries of both Houses of Parliament.

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 “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.

Check the source