UK Offence Report

Amendment of the Banking Act 2009

article 2(26) of The Banking Act 2009 (Service Providers to Payment Systems) Order 2017

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

26 In section 205 (pretending to be recognised), after subsection (1) insert— 1A It is an offence for

a person who is not

a service provider in relation to

a recognised payment system—

a to assert that the person is such

a service provider, or

b to do anything which suggests that the person is such

a service provider. .

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 This is the text as originally made; later amendments are not shown here.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

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 article 2(26)?

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 Banking Act 2009 (Service Providers to Payment Systems) Order 2017.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
29 November 2017
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.

Part 2 of this Order amends Part 5 of the Banking Act 2009 (c. 1), which provides for the Bank of England to oversee certain payment systems, such that the Part applies to certain service providers in relation to such systems. In article 2— paragraphs (4) to (7) require the Treasury to consult the Payment Systems Regulator in relation to the making, amendment and revocation of orders recognising payment systems as systems over which the Bank of England has oversight, and amend the procedure for the amendment of such orders where the amendment revokes or changes the specification of service providers over which the Bank of England has oversight. paragraphs (8) to (12) make amendments providing for the Bank of England’s functions and powers to oversee specified service providers; paragraphs (13) to (22) make amendments providing for the inspection and investigation of specified service providers, and enforcement of compliance failures; paragraphs (2), (3) and (23) to (29) make other related amendments. Article 3 makes consequential amendments to related secondary legislation. Part 3 of this Order amends the Bank of England Act 1998 (c. 11) so that the Bank of England may disclose information obtained by it under that Act to the Payment Systems Regulator. Part 4 of this Order amends the Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014 in consequence of amendments to the Banking Act 2009 made by the Digital Economy Act 2017 (c. 30). A full impact assessment has not been produced for this instrument as no significant impact on the costs of business or the voluntary sector is foreseen.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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