UK Offence Report

2 A person is guilty of an offence if that person, without reasonable excuse, refuses or fails— a to attend…

paragraph 102A(2) of SCHEDULE 2 of The Transfer of Tribunal Functions Order 2010

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 person is guilty of an offence if that person, without reasonable excuse, refuses or fails—

a to attend following the issue of

a summons by the tribunal; or

b to give evidence.

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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
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 A person is guilty of an offence if that person, without reasonable excuse, refuses or fails— a to attend following the issue of a summons by the tribunal; or b to give evidence.

What would breach paragraph 102A(2) of SCHEDULE 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. Doing what the provision prohibits, or failing to do what it requires under the Transfer of Tribunal Functions Order 2010.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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
6 January 2010
In force from
Not determined
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order is made under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Part 1 of the 2007 Act creates a new two tier tribunal structure; the First-tier Tribunal and the Upper Tribunal are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable existing tribunals to be transferred into the new structure. This Order effects the transfer into the new structure of various tribunal functions. Article 2 transfers the functions of various tribunals to the First-tier Tribunal and Upper Tribunal. Article 3 abolishes each of the tribunals whose functions are transferred, with the exception of the Pensions Regulator Tribunal. The functions of the Pensions Regulator Tribunal in Northern Ireland are not transferred, therefore the Pensions Regulator Tribunal is not abolished. Article 4 provides for members of the tribunals whose functions are transferred to hold judicial offices in the First-tier Tribunal and Upper Tribunal. Schedule 1 sets out which tribunal members hold which offices in the new tribunals. Paragraphs (1) to (3) of article 5 bring Schedules 2 to 4 into effect. Schedule 2 contains consequential amendments to primary legislation, Schedule 3 contains consequential amendments to secondary legislation, and Schedule 4 contains consequential repeals and revocations of legislation. The majority of these amendments, repeals and revocations are made in consequence of the transfers of tribunal functions and members, and abolition of tribunals, effected by articles 2, 3 and 4. However paragraphs 11 and 73 of Schedule 2 and paragraph 147 of Schedule 3 relate to the transfer of the Lands Tribunal into the Upper Tribunal that was effected by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 (S.I. 2009/1307). Paragraph 4 of article 5 brings Schedule 5 into effect. Schedule 5 makes transitional and saving provisions for the treatment of cases which would previously have been dealt with by the tribunals, the functions of which have been transferred, and onward appeals from those tribunals, following the coming into force of this Order. The Schedule provides for cases which have been started to be transferred to the First-tier Tribunal or Upper Tribunal; new proceedings will be started in the First-tier Tribunal or Upper Tribunal. In transferred cases the following provisions apply: a hearing which has already been commenced but not completed will need to be completed in the First-tier Tribunal or Upper Tribunal but comprised of the same members; directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the First-tier Tribunal or Upper Tribunal; Tribunal Procedure Rules applicable to the First-tier Tribunal or Upper Tribunal will apply to all cases from the date of transfer, but the Tribunals will be able to disapply rules or apply the rules which applied to a case prior to the transfer, to ensure that proceedings are dealt with fairly; time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and the First-tier Tribunal or Upper Tribunal will only be able to make a costs order if and to the extent that the tribunal dealing with the case prior to transfer could have made such an order. Appeals against the decisions of the tribunals, the functions of which have been transferred, are to be treated as appeals against the decisions of the First-tier Tribunal or Upper Tribunal, if the appeal right has not been exercised before this Order comes into force and the time for doing so has not expired. A Regulatory Impact Assessment was prepared for the Tribunals, Courts and Enforcement Act 2007. This can be found at: http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm

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 0.92.

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