UK Offence Report

Abstract of receipts and payments

rule 38(4) of The Water Industry (Special Administration) Rules 2009 (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

4 It is an offence for the special administrator to fail to comply with this rule, punishable—

a on summary conviction, to

a fine not exceeding level

3 on the standard scale; and

b for continued contravention, to

a daily fine not exceeding one-tenth of that amount.

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 This is the text as originally made; later amendments are not shown here.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 rule 38(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. Not doing what the provision requires under the Water Industry (Special Administration) Rules 2009, 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
£1,000
Standard scale
Level 3
Maximum prison (summary)
6 months
Maximum prison (on indictment)
2 years

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 September 2009
In force from
1 November 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 Rules) — the explanatory note published with the instrument, © Crown copyright.

These Rules apply the Insolvency Rules 1986, with modifications. They set out the procedure for the conduct of special administration proceedings for companies that are “relevant companies” within the meaning of the Water Industry Act 1991. “Relevant companies” are water undertakers, sewerage undertakers or companies that are qualifying licensed water suppliers under that Act. Special administration is a special insolvency regime specifically created for such companies. Similar regimes exist for other kinds of companies that provide major infrastructure services, for example energy suppliers. The framework for the special administration regime is set out in sections 23 to 26 of, and Schedules 2 and 3 to, the Water Industry Act 1991. Schedule 3 applies with modifications certain provisions of the Insolvency Act 1986 including Part 2 of that Act which, before 15 September 2003, governed administration proceedings in relation to most companies. From that date, section 248 of the Enterprise Act 2002 repealed Part 2 and replaced it with a new Schedule 1B to govern administration proceedings in relation to such companies. However, section 249 of the Enterprise Act 2002 preserves Part 2 insofar as it applies to certain types of company, including relevant companies under the Water Industry Act 1991. The special administration process is commenced by petition to the court for a special administration order. Such an application can be made by the Secretary of State, the Welsh Ministers, or the Water Services Regulation Authority. Part 1 of the Rules contains the construction and interpretation provisions. Part 2 of the Rules sets out the procedure to be followed to begin special administration proceedings, including the information that must be included in a petition for a special administration order and how much notice of that petition must be given and to whom. It also contains provisions on the notification and advertisement of a special administrator’s appointment. Part 3 of the Rules contains provisions relating to the special administrator, including how his remuneration is fixed and the procedures to be followed if the special administrator resigns or dies. Part 4 of the Rules sets out the steps to be taken in a special administration. These include the preparation of a statement of the relevant company’s affairs and the provision of information to creditors about the special administrator’s proposals. Part 5 of the Rules governs the conduct of creditors’ and members’ meetings called by the special administrator. Part 6 of the Rules contains provisions for the use of proxies at creditors’ or members’ meetings held during a special administration, including the rights of inspection of proxies and the procedure to be followed if a proxy-holder has a financial interest in the outcome of a resolution to be voted on at the meeting. Part 7 of the Rules sets out the court procedure and practice for special administration proceedings. In particular, this Part sets out the general requirements for court applications made during a special administration, the cost assessment procedure for special administration proceedings and the appeals process to be used in such proceedings. Part 8 of the Rules sets out procedure for the examination of persons if a special administrator has made an application to court under section 236 of the Insolvency Act 1986. Section 236 allows a special administrator to apply to the court for an order requiring a person to appear before the court to be questioned by the special administrator about the relevant company. Part 9 of the Rules contains miscellaneous provisions, including provisions relating to the punishment of contraventions of the Rules. The Schedule to the Rules contains the forms that are to be used in special administration proceedings. A full impact assessment has not been produced for this instrument because no effect on the private or voluntary sectors is foreseen.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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