UK Offence Report

Enforcement of Article 10A(4) and (5) of the Order

regulation 5(1) of The Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Reports on Conduct of Directors) (Northern Ireland) Regulations 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 Articles 10A(4) or 10A(5) of the Order 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, he is liable on

a second or subsequent summary conviction of the offence to

a fine of 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 This is the text as originally made; later amendments are not shown here.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 Articles 10A(4) or 10A(5) of the Order 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 contraventi

What would breach regulation 5(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 Articles 10A(4) or 10A(5) of the Order.
  2. Not doing what the provision requires under the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Reports on Conduct of Directors) (Northern Ireland) Regulations 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 March 2016
In force from
6 April 2016
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 amend the Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 2003 (“the 2003 Rules”) in consequence of the commencement of paragraph 5 of Schedule 8 to the Small Business, Enterprise and Employment Act 2015. Regulation 2 substitutes rule 4 and the Schedule to provide that the report which Article 10A(1) of the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150) (N.I. 4)) (“the Order”) requires the office-holder to prepare on a person’s conduct as director of an insolvent company is to be made using new Form DCR. Regulation 2 also substitutes rule 5 to provide that an office-holder is guilty of an offence if they fail (without reasonable excuse) to comply with Article 10A(4) or 10A(5) of the Order. On conviction for such an offence, the office-holder would be liable to a fine not exceeding level 3 on the standard scale and for continued contravention would be liable to a daily default fine. Article 10A(4) of the Order requires the office-holder to send the conduct report to the Department before the end of 3 months beginning with the insolvency date, or such longer period as the Department considers appropriate in the particular circumstances. Article 10(5) requires the office-holder to send any new information which comes to their attention to the Department as soon as reasonably practicable. Regulation 2 also revokes Rule 6. Regulation 3 requires a Minister of the Crown to review the operation and effect of the 2003 Rules and publish a report within five years after these Regulations come into force. Following the review it will fall to the Minister to consider whether the 2003 Rules should be revoked or should continue in force with or without further amendment. A further instrument would be needed to revoke the 2003 Rules or amend them. Regulation 4 provides transitional and savings provisions. A regulatory impact assessment has not been produced for this instrument as the policy was covered in a regulatory impact assessment produced by the Northern Ireland Insolvency Service with respect to provisions in the Small Business, Enterprise and Employment Act 2015 amending the Company Directors Disqualification (Northern Ireland) Order 2002. Copies of this regulatory impact assessment are available from the Legislation Unit, Insolvency Service, Fermanagh House. 20A Ormeau Avenue, Belfast BT2 8NJ.

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