UK Offence Report

Penalties for non-compliance (accounts)

regulation 6(1) of The Bank Accounts Directive (Miscellaneous Banks) Regulations 2008 (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

1 If the directors of

a qualifying bank fail to prepare, or (in the case of the auditor’s report) fail to cause to be prepared, the accounts required by regulation 4(1) within the period referred to in regulation 4(3), an offence is committed by every person who, immediately before the end of that period, was

a director of the bank.

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 This is the text as originally made; later amendments are not shown here.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 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 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 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 6(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. Not doing what the provision requires under the Bank Accounts Directive (Miscellaneous Banks) Regulations 2008, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Either way — magistrates’ court or Crown 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 (2008-04-06); 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
26 February 2008
In force from
6 April 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 are made under section 2(2) of the European Communities Act 1972. They replace the Bank Accounts Directive (Miscellaneous Banks) Regulations 1991 (S.I. 1991/2704) (“the 1991 Regulations”) and continue the implementation of Council Directive 86/635/EEC of 8th December 1986 on the annual and consolidated accounts of banks and other financial institutions. They also implement, in part, Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts (O.J. L157, 9.6.2006, p.87) (“the Audit Directive”). The Regulations come into force on 6th April 2008, and apply to financial years beginning on or after that date, and auditors appointed in respect of those financial years (regulation 1(2)). They extend to the whole of the United Kingdom. They apply to the undertakings specified in regulation 3 (“qualifying banks”) which have their principal place of business in the United Kingdom. Regulation 4 re-enacts the requirements of the 1991 Regulations that qualifying banks prepare accounts and a directors’ report, and cause to be prepared an auditor’s report, as if they were banking companies or parent companies of banking groups (within the meaning of the Companies Act 2006). Relevant provisions of the Companies Act 2006 and of the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 (“the Companies Accounts Regulations”) are applied to the accounts and reports of such banks. Some of those provisions are modified by the Schedule to the Regulations. Regulation 4(2) applies the relevant provisions of the Companies (Disclosure of Auditor Remuneration and Liability Limitation Agreements) Regulations 2008 to qualifying banks. This implements Article 49 of the Audit Directive on the disclosure of auditor remuneration. The requirement of the 1991 Regulations that the accounts of qualifying banks should be prepared within 7 months of the end of the relevant year is replaced by a requirement that the accounts should be prepared within 6 months of that date (regulation 4(3)), reflecting the new time limit in section 442(2)(b) of the Companies Act 2006. Regulation 5 re-enacts the provisions of the 1991 Regulations for the publication of the accounts required by these Regulations. Regulation 6 contains penalties for non-compliance with regulations 4 and 5. Regulation 7 implements Article 37 of the Audit Directive, which requires the auditor to be appointed by the general meeting of shareholders or members of the audited entity. It does so by applying sections 485 to 488 of the Companies Act 2006. Regulation 8 imposes equivalent functions on auditors to those imposed by the Companies Act 2006, and Regulation 9 implements Article 28.1 of the Audit Directive on signature of the auditor’s report. Regulation 10 implements Article 38.1 of the Audit Directive, which requires Member States to ensure that auditors may be dismissed only where there are proper grounds. It creates a new right to apply to the High Court, which may be exercised by a member of the qualifying bank or by the Financial Services Authority. Regulations 11 and 12 implement Article 38.2 of the Audit Directive, which requires Member States to ensure that the audited entity and the auditor inform the authorities responsible for public oversight of the resignation or dismissal of the auditor. Regulation 13 contains penalties for non-compliance with regulations 11 and 12. Regulation 14 makes a consequential amendment to the Companies Act 2006. Regulation 15 revokes the 1991 Regulations and makes transitional provision for the continued application of those regulations in respect of financial years of qualifying banks beginning before 6th April 2008. A transposition note has been prepared which sets out how Directive 2006/43 is to be transposed into UK law. An Impact Assessment of the effect that the implementation of Directive 2006/43 will have on the costs of business, charities or voluntary bodies has also been prepared. Both are available from the Department for Business, Enterprise and Regulatory Reform, Corporate Law and Governance Directorate, 1 Victoria Street, London, SW1H 0ET. They are also available electronically at www.berr.gov.uk. Copies have also been placed in the libraries of both Houses of Parliament. Otherwise an Impact Assessment has not been produced for these Regulations as they have only a negligible impact on the costs of business, charities or voluntary bodies.

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 0.55.

Basis
c06_offence_committed
Confidence
0.55 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