UK Offence Report

Enforcement of rules 4 to 6

article 8(1) of The Insolvent Companies (Reports on Conduct of Directors) (England and Wales) Rules 2016

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

1 An office-holder who without reasonable excuse fails to comply with any of the obligations imposed by section 7A(4) or 7A(5) of the Act is guilty of an offence and—

a on summary conviction of the offence, is liable to

a fine not exceeding level

3 on the standard scale, and

b for continued contravention, is liable to

a daily default fine; that is to say, the office-holder is liable on

a second or subsequent summary conviction of the offence to

a fine not exceeding one-tenth of level

3 on the standard scale for each day on which the contravention is continued (instead of the penalty specified in sub-paragraph (a)).

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 This is the text as originally made; later amendments are not shown here.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

1 An office-holder who without reasonable excuse fails to comply with any of the obligations imposed by section 7A(4) or 7A(5) of the Act is guilty of an offence and— a on summary conviction of the offence, is liable to a fine not exceeding level 3 on the standard scale, and b for continued contravention, i

What would breach article 8(1)?

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 any of the obligations imposed by section 7A(4) or 7A(5) of the Act.
  2. Not doing what the provision requires under the Insolvent Companies (Reports on Conduct of Directors) (England and Wales) Rules 2016, 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
£1,000
Standard scale
Level 3
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
11 February 2016
In force from
6 April 2016
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 the Rules) — the explanatory note published with the instrument, © Crown copyright.

These Rules revoke and replace the Insolvent Companies (Reports on Conduct of Directors) Rules (S.I. 1996/1909) subject to transitional and saving provisions. These Rules make provision in England and Wales for the manner in which an office-holder is to prepare and send a conduct report, under section 7A of the Company Directors Disqualification Act 1986 (c.46) (“the Act”), about the conduct of each person who was a director of an insolvent company in the 3 years before the insolvency. Rule 3 enables the Secretary of State or official receiver to apply for a court order to enforce a requirement under section 7(4) of the Act. Rules 4 to 6 provide for the manner in which an office-holder is to comply with obligations in section 7A of the Act. Rule 7 makes provision for circumstances where the portal is unavailable. Rule 8 provides that an office-holder is guilty of an offence if the office-holder fails (without reasonable excuse) to send to the Secretary of State— the conduct report, before the end of 3 months beginning with the insolvency date, or such longer period as the Secretary of State considers appropriate, or if applicable, new information as soon as reasonably practicable. Rule 9 requires the Secretary of State to review the operation and effect of these Rules and publish a report within 5 years after the Rule comes into force and within every 5 years after that. Following a review it will fall to the Secretary of State to consider whether these Rules should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Rules or to amend them. Rule 10 provides transitional and saving provisions. An impact assessment of the effect that this instrument will have on the costs of business is available from The Insolvency Service, 4 Abbey Orchard Street, London SW1P 2HT and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk .

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