UK Offence Report

Evidence of claims

article 3.107(7) of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018

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

7 A person who fails without reasonable excuse to comply with an order made under paragraph (2) is 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 This is the text as originally made; later amendments are not shown here.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

7 A person who fails without reasonable excuse to comply with an order made under paragraph (2) is guilty of an offence.

What would breach article 3.107(7)?

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 fails without reasonable excuse to comply with an order made under paragraph (2).
  2. Doing what the provision prohibits, or failing to do what it requires under the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018.

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
11 October 2018
In force from
6 April 2019
Extent
S

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 detailed procedures for the conduct of company voluntary arrangements (“CVAs”) and administration proceedings in Scotland under the Insolvency Act 1986 (“the Act”). The Rules accordingly give effect, for Scotland, to Parts 1 and 2 of the Act and to EU Regulation No 2015/848 of 20 May 2015 on insolvency proceedings (the EU Regulation). These Rules, in conjunction with a related Scottish Statutory Instrument – the Insolvency (Scotland) Receivership and Winding Up Rules 2018 (which make provision in relation to winding up proceedings) - aim to modernise and consolidate the Insolvency (Scotland) Rules 1986 (S.I. 1986/1915, as amended). To the extent that they apply to CVAs and administration proceedings, the 1986 Rules are accordingly revoked by this instrument, along with a number of amending rules and related instruments. These Rules also give effect to amendments made to the Act by the Small Business, Enterprise and Employment Act 2015 (c.26). These Rules are structured as follows: The Introductory Rules (rules 1-6) contain the citation, commencement, extent and application of these Rules. The Introductory Rules also introduce Schedule 1 (revocations), Schedule 2 (transitional and savings provisions) and Schedule 3 (punishment of offences). Part 1 (rules 1.1-1.57) is a common part containing definitions and rules about the standard content of documents; the delivery of documents; the use of websites; and the keeping of records. Part 1 also gives effect to Schedule 4 which sets out the information to be contained in the Sederunt Book. Part 2 (rules 2.1-2.44) contains rules about CVAs. Part 3 (rules 3.1-3.119) contains rules about administration. Part 4 (rules 4.1-4.3) contains rules about the block transfer of insolvency proceedings between insolvency practitioners. Part 5 (rules 5.1-5.42) is a common part containing rules about decision making. Part 6 (rules 6.1-6.8) is a common part containing rules about proxies and corporate representation. Part 7 (rules 7.1-7.14) contains rules which give effect to the EU Regulation.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

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