UK Offence Report

Progress Reports

article 35(5) of The Postal Administration (Scotland) 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

5 If the postal administrator makes default in complying with this Rule without reasonable excuse, the postal administrator shall be guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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

tal administrator makes default in complying with this Rule without reasonable excuse, the postal administrator shall be guilty of an offence.

What would breach article 35(5)?

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 Postal Administration (Scotland) Rules 2016.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
8 September 2016
In force from
1 October 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 Rules) — the explanatory note published with the instrument, © Crown copyright.

These Rules set out the procedure for the conduct of postal administration proceedings in Scotland. Postal administration is a special insolvency regime specifically created for companies that are designated under section 35 of the Postal Services Act 2011 (c.5) (the 2011 Act) as universal service providers. The framework for the postal administration regime is set out in Part 4 of the 2011 Act. The main features of postal administration are: a the company enters the procedure by court order on application by the Secretary of State or with the consent of the Secretary of State, by OFCOM; b the order appoints a postal administrator; c the objective of a postal administration is to secure that a universal postal service is provided in accordance with the standards set out in the universal postal service order; and d in other respects the process is the same as for normal administration under the Insolvency Act 1986 (c.45), subject to modifications specified in Schedule 10 to the 2011 Act. These Rules are based upon the provisions of the existing Insolvency (Scotland) Rules 1986 (S.I. 1986/1915) but are a stand-alone set of rules applicable only to postal administration proceedings. These Rules apply to universal service providers which the courts in Scotland have jurisdiction to wind up. There are separate Rules (The Postal Administration Rules 2013 – S.I. 2013/3208) which apply to universal service providers which the courts in England and Wales have jurisdiction to wind up. Part 1 of these Rules contains the interpretation and application provisions. Rule 4 provides that these Rules must be reviewed by 1st October 2021. Part 2 sets out the procedure to be followed in relation to proceedings for the appointment of a postal administrator and on whom such proceedings must be served. Part 3 details the initial steps to be taken in postal administration proceedings. These include the notification and advertisement of the postal administrator’s appointment and the preparation of a statement of the company’s affairs. Part 3 also sets out the information that must be given to creditors in the postal administrator’s proposals. Part 4 governs the conduct of creditors and company meetings called by a postal administrator during postal administration proceedings. Part 4 also deals with the provision of progress reports relating to the administration and applications by the administrator to dispose of secured property. Part 5 makes provision in respect of claims in the postal administration and how they are to be established and quantified, as well as the voting rights that flow from claims which are accepted. It also provides for a criminal offence in respect of false claims by creditors. Part 6 concerns distributions to creditors of the company and the expenses of the postal administration. It sets out the order of priority in any distribution and the mechanism for calculating the outlays and remuneration of the postal administrator. Part 7 sets out the arrangements for ending a postal administration. There are specific provisions detailing the ending of a postal administration by court order, as well as the process by which a company administration moves into either a creditors’ voluntary liquidation or dissolution of the company. Part 8 deals with the requirements and procedures for replacing a postal administrator and includes provisions relating to the resignation of a postal administrator and the removal of a postal administrator from office by court order. Part 9 makes provision in respect of the share of the assets of the company for unsecured creditors (the prescribed part). Part 10 makes provision for the use of proxies at creditors’ or members’ meetings held during a postal administration, including the rights of inspection of such proxies and the procedure to be followed where a proxy-holder has a financial interest in the outcome of a resolution to be voted on at the meeting. Part 11 deals with the rules relating to the giving of notices in relation to the postal administration. It includes provisions relating to electronic delivery and the use of websites by the postal administrator. Part 12 deals with miscellaneous provisions, including the postal administrator’s caution, electronic submission of forms, content of notices and provides the court with power to cure defects in procedure. The Schedule to the Rules contains the forms that are to be used in postal operator administration proceedings. The forms in this Schedule are based upon the forms contained in the Insolvency (Scotland) Rules 1986 which deal with ordinary administration, but have been modified for the purposes of postal administration. A full impact assessment has not been produced for this instrument. An Impact Assessment for the 2011 Act is available on website of the Department for Business, Innovation and Skills - https://www.gov.uk/government/publications/postal-services-bill-2010-impact-assessment.

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