UK Offence Report

Circumstances in which CIO may be wound up voluntarily

paragraph 84(11) of SCHEDULE of The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012

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

11 If a CIO fails to comply with subsection (10) an offence is committed by the liquidator and by every charity trustee of the CIO who is in default.

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 This is the text as originally made; later amendments are not shown here.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 charity trustee
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 charity trustee 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 paragraph 84(11) of SCHEDULE?

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 Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012, 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
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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
5 December 2012
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, together with the Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012) and the Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (S.I. 2012/3014), build on provisions in Part 11 of the Charities Act 2011 (“the 2011 Act”) relating to charitable incorporated organisations (“CIOs”). The provisions were originally in the Charities Act 1993 (as amended by the Charities Act 2006) but were consolidated in the 2011 Act. The Regulations provide for what is to happen when a CIO is insolvent or is dissolved for any other reason. The Insolvency Act 1986 (“the 1986 Act”) is applied, with modifications, (regulation 3 and the Schedule) so that a CIO is subject to the same insolvency and dissolution procedures as a registered company. This means that a CIO can be subject to a voluntary arrangement (Part 1 of the 1986 Act), be placed in administration (Part 2) or in receivership (Part 3), or be wound up voluntarily (Part 4) or by the court (Part 6). Subordinate legislation made under the 1986 Act is also applied to CIOs (paragraph 2 of the Schedule). An alternative regime is established in Part 3 of the Regulations for the dissolution of a CIO otherwise than under the 1986 Act. Under this regime, a CIO can apply to the Charity Commission for voluntary dissolution (regulation 4). The Regulations specify how an application is to be made (regulation 5), and that the members must first pass a resolution to apply for dissolution (regulation 6). The charity trustees must not apply unless all the CIO’s debts are settled and the CIO has taken any steps it is required by its constitution to take in relation to its property prior to dissolution (regulation 8). Also, the charity trustees must not apply if a statutory process for the protection of the CIO’s assets is already in place (regulation 9). Once it has applied for dissolution the CIO must cease its activities and must not incur any debts (regulation 10), and the charity trustees who made the application must give members, employees and other charity trustees of the CIO notice of it (regulation 12). Where a CIO has applied for voluntary dissolution, if another statutory process is begun before the application is dealt with, or if the CIO incurs debts, the charity trustees must immediately withdraw the application (regulation 14). The CIO voluntary dissolution procedure replicates the procedure in the Companies Act 2006, and failure to comply with regulations 8, 9, 12 or 14 will constitute an offence under that Act. The Charity Commission must dissolve a CIO itself where the CIO is not in operation (regulation 16); is no longer a charity (regulation 17); or is being wound up (regulation 18). In each case, dissolution is effected by the removal of the CIO from the register of charities maintained by the Charity Commission (regulation 20). Where a CIO is dissolved under Part 3 of the Regulations, Part 4 makes provision for the CIO’s property to pass to the official custodian for charities. The CIO’s property, including any property held on trust for the CIO by another person, will vest automatically in the official custodian (regulation 23). Where the CIO has directed, prior to dissolution, that certain property is to be transferred on dissolution, that property will not vest in the official custodian but will be transferred as directed. Property vested in the official custodian is to be applied for charitable purposes specified by the Charity Commission (regulations 25 and 26). The official custodian can disclaim all or any property of the CIO (regulation 27). Where the official custodian disclaims leasehold property, the disclaimer does not take effect unless notice has been served in accordance with regulation 29. The court can make an order vesting disclaimed property in, or requiring it to be delivered to, a person with a claim to it (regulation 30). Part 5 sets out the circumstances in which a dissolved CIO can be restored to the register. The Charity Commission can restore a CIO which it removed from the register (regulation 33), and the court has the power to order restoration where the CIO has been dissolved after being wound up or being in administration (regulation 34). Regulation 37 provides for a CIO to be restored with a new name where the old name is one which the Charity Commission would not have accepted, were the CIO being registered for the first time, because the name is the same as or too similar to the name of another charity. Once restored, a CIO is to be treated as if it had continued in existence without being dissolved (regulation 39). It must prepare accounts, reports and returns in the usual way, but need not do so for a “relevant financial year” as defined (broadly, a financial year spanning the period between dissolution and restoration) unless the Charity Commission requests that it does so. Part 8 of the 2011 Act (Charity accounts, reports and returns) is modified accordingly (regulation 41). An impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.

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.

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