UK Offence Report

Recognition and enforcement of maintenance orders under the Lugano Convention

regulation 5A(8) of The Civil Jurisdiction and Judgments 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

8 A person who without reasonable excuse fails to comply with subsection (7) shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

2 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
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

8 A person who without reasonable excuse fails to comply with subsection (7) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

What would breach regulation 5A(8)?

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 without reasonable excuse fails to comply with subsection (7).
  2. Not doing what the provision requires under the Civil Jurisdiction and Judgments 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
Summary only — tried in a magistrates’ court
Maximum fine
£500
Standard scale
Level 2
Maximum prison (summary)
Not determined

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 November 2009
In force from
1 January 2010
Extent
E+W

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 these Regulations) — the explanatory note published with the instrument, © Crown copyright.

The Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was agreed by the European Community, the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark on 30th October 2007. It replaces the 1988 Convention on the same subject matter. The provisions of this new Convention are generally parallel in nature to those in Council Regulation (EC) No. 44/2001; this latter instrument operates within the European Community. The new Convention was ratified by the Council of Ministers on 18th May 2009 and enters into force for the European Community and Norway on 1st January 2010. On that date it will not enter into force in relation to Switzerland and Iceland because those countries will not, as at that date, have ratified it. In relation to those countries the 1988 convention will continue to apply until such time as those ratifications take place. These Regulations amend various legislation, in particular the Civil Jurisdiction and Judgments Act 1982, the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, the Civil Procedure Rules 1998, the Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures)(Scotland) Order 1997 and the Employment Tribunals (Enforcement of Judgments in Other Jurisdictions)(Scotland) Regulations 2002. These amendments make changes consequential upon the entry into force of the new Convention. The amendments to the 1982 Act generally mirror the provisions made by the Civil Jurisdiction and Judgments Order 2001 on the commencement of Council Regulation (EC) No. 44/2001. The Regulations also make provision in relation to authentic instruments and court settlements. These generally mirror the provisions made by the Civil Jurisdiction and Judgments (Authentic Instruments and Court Settlements) Order 2001 on the commencement of Council Regulation (EC) No. 44/2001. These Regulations shall come into force on 1st January 2010.

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 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