UK Offence Report

Penalties for non-compliance

regulation 72(2) of The Overseas Companies Regulations 2009

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 A liquidator who fails to comply with regulation 70(1) or (3)(a) or (b) within the period allowed for compliance commits an offence.

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 This is the text as originally made; later amendments are not shown here.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 72(2)?

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 fails to comply with regulation 70(1) or (3)(a) or (b) within the period allowed for compliance.
  2. Not doing what the provision requires under the Overseas Companies Regulations 2009, by the time it requires it to be done.
  3. 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
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
Status not determined
Made
8 July 2009
In force from
1 October 2009
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 impose various registration and filing requirements on companies incorporated outside the United Kingdom (“overseas companies”) that open an establishment, whether a place of business or a branch, in the United Kingdom (a “UK establishment”). They replace Part 23 of, and Schedules 21A to 21D to, the Companies Act 1985 (“the 1985 Act”) (and the equivalent Northern Ireland provisions) which, amongst other things, implemented— a the Eleventh Company Law Directive (89/666/EEC), and b the Council Directive on the obligations of branches established in a Member State of credit and financial institutions having their head offices outside that Member State regarding the publication of annual accounting documents (the Bank Branches Directive) (89/117/EEC). Part 2 (regulations 3 to 11) requires an overseas company to register certain particulars and documents with the registrar of companies within one month of opening a UK establishment. Part 3 (regulations 12 to 17) requires an overseas company to file details of any alterations to the particulars or documents registered under Part 2. An overseas company is required (Part 4) to register particulars about the usual residential address of its directors and permanent representatives. Part 4 (regulations 18 to 29) and Schedules 1 to 3 implement section 1055 of the Companies Act 2006 (“the Act”), which requires provision to be made corresponding to that made by sections 240 to 246 of the Act (directors’ residential addresses: protection from disclosure). Those provisions prescribe the circumstances in which information about a director’s residential address can be used by a company and the registrar and disclosed to third parties by the registrar. Part 4 also contains provisions corresponding to provisions made by regulations under section 243(3) to (6) of the Act in the Companies (Disclosure of Address) Regulations 2009 (S.I. 2009/214). Part 5 concerns the delivery of accounting documents to the registrar by limited overseas companies that are not credit or financial institutions. Chapter 2 (regulations 31 to 35) applies where the parent law of an overseas company requires the preparation and disclosure of accounts. In those cases the company must deliver to the registrar such accounts and accompanying reports (including any audit and directors’ reports) that it files under its parent law. In certain circumstances specified in regulation 32, where an overseas company has more than one UK establishment it is not necessary for that company to file accounts in respect of each of its UK establishments. Regulation 33 also requires the company to notify the registrar of the legislation and accounting principles under which the accounts have been prepared. Chapter 3 (regulations 36 to 42), together with Schedules 4 and 5, applies where the parent law of an overseas company does not require accounts to be prepared and disclosed. It applies to such companies, with modifications, certain provisions of Part 15 (accounting documents) of the Act. The Regulations set out the provisions of Part 15 that are applied as modified. There are three main obligations— a to prepare accounts in accordance with parent law, international accounting standards or Schedule 4 (or, if the company is a parent company, Schedule 5) to these Regulations, b to identify the set of accounting principles on which accounts have been prepared, c to file those accounts with the registrar. Part 6 (regulations 43 to 57), together with Schedules 6 and 7, concerns the delivery of accounting documents to the registrar by overseas credit or financial institutions. The structure mirrors Part 5 in that different provision is made for institutions required by parent law to prepare accounts and those not so required. Part 7 (regulations 58 to 67) requires overseas companies carrying on business in the UK to make certain trading disclosures. Under Part 8 (regulations 68 to 74) an overseas company with a UK establishment is required to notify the registrar if it is being wound up (regulation 69) or subject to insolvency proceedings (regulation 71) and the liquidator of such a company is likewise subject to filing obligations (regulation 70). Furthermore, an overseas company with a UK establishment must notify the registrar if a judicial factor is appointed (regulation 73). Part 9 (regulations 75 to 77) contains miscellaneous provisions concerning service of documents (regulation 75), documents subject to Directive disclosure requirements (regulation 76), the duty to give notice of ceasing to have a registrable presence (regulation 77). Part 10 (regulations 78 to 80) contain supplementary provisions: regulation 78 concerns the documents which may be drawn up and delivered to the registrar in a language other than English, on condition that they are accompanied by a certified translation into English. Those documents include the constitution and accounting documents delivered under these Regulations; revocation of the Oversea Companies and Credit and Financial Institutions (Branch Disclosure) Regulations 1992 (S.I. 1992/3179) which amended Part 23 of the 1985 Act so as to implement the two Directives mentioned in the first paragraph of this note (regulation 79); and transitional provisions and savings (regulation 80). An Impact Assessment in respect of these Regulations has been produced and copies are available from the Company Law and Governance Directorate, Department for Business, Enterprise and Regulatory Reform, 1 Victoria Street, London, SW1H 0ET or on http://www.berr.gov.uk/bbf/co-act-2006/.

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 “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