UK Offence Report

Meaning of “relevant offence”

paragraph 366A of SCHEDULE of The Insolvency (Amendment) (EU Exit) Regulations 2019

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

366A In Articles 359(2B), 364(1B) and 365(1B), a “relevant offence” is a criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day.

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 This is the text as originally made; later amendments are not shown here.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 paragraph 366A of SCHEDULE?

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 Insolvency (Amendment) (EU Exit) Regulations 2019.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
Not determined

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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
30 January 2019
In force from
Not determined
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made in exercise of the powers in section 8(1) of the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under section 8(2)(b) to (d)) arising from the withdrawal of the United Kingdom from the European Union. These Regulations make amendments to legislation in the field of cross-border insolvency. These Regulations also contain minor amendments to the Insolvency (Northern Ireland) Order 1989 and to employment legislation in Northern Ireland bringing that legislation into line with EU law. These amendments are made under section 2(2) of the European Communities Act 1972 (c. 21) (“the ECA”) and come into force on the day after these Regulations are made. The EU Regulation on insolvency proceedings ((EU) 2015/848) (“the EUIR”) determines in which member State main insolvency proceedings may be opened and provides that decisions opening proceedings are to be recognised in other member States. Main proceedings may only be opened in the state where the centre of the debtor’s main interests, or COMI, is located. Secondary proceedings may be brought in a state where the debtor has an establishment. The EUIR makes other provisions to facilitate the operation of cross-border insolvency proceedings including for co-operation between courts and insolvency practitioners. These Regulations address the deficiencies that will arise from the absence of mutual application of the EUIR. It is not appropriate to continue to apply the EUIR unilaterally in respect of EU proceedings when member States will not apply the Regulation to UK proceedings. There is however a saving and transitional provision in regulations 4 and 5 which continues to apply the EUIR, the previous EU insolvency regulation and the associated domestic law where main proceedings have been opened before exit day. The court may decide not to apply these Regulations in the circumstances set out in regulation 5. Part 1 amends the EUIR. It retains the jurisdictional test based on COMI as an additional test of jurisdiction. The restrictions on opening insolvency proceedings where the COMI is in a member State are removed. The majority of the EUIR, which is based on mutual application between member States, is omitted. This Part extends to the whole of the United Kingdom. Parts 2 and 3 make consequential amendments to the Insolvency Act 1986 (c. 45). These Parts extend to England and Wales and Scotland, with a few exceptions set out in regulation 3(a). Part 4 amend the Insolvency (England and Wales) Rules 2016. These amendments are consequential on the amendments made to the EUIR by Part 1. These Rules govern the conduct of corporate and personal insolvency proceedings under the Insolvency Act 1986 in England and Wales. Parts 5 and 6 make further consequential amendments. These include amendments to the Cross-Border Insolvency Regulation 2006 which will apply after exit day to new cross-border proceedings previously within the EUIR. Parts 5 and 6 extend to England and Wales and Scotland. Part 7 makes consequential amendments to a number of sections of the Insolvency Act 1986 as those sections are in force in Scotland. These sections were amended by the Small Business, Enterprise and Employment Act 2015. Those amendments have been commenced for England and Wales but have not yet been commenced for Scotland. Hence different versions of those sections are in force in England and Wales and in Scotland. Part 7 only applies to Scotland. Part 8 amends the Insolvency (Scotland) Rules 1986 as they provide for corporate insolvency proceedings in Scotland. These amendments are consequential on the amendments to the EUIR. Part 8 only applies to Scotland. Part 9 makes amendments to the Insolvency Northern Ireland Order 1989 and the Insolvency Rules (Northern Ireland) 1991 covering both corporate and personal insolvency. These amendments are consequential on the amendments to the EUIR. Paragraph 177 amends the existing law on bankruptcy to provide for jurisdiction where the debtor has an establishment in Northern Ireland. This brings the jurisdictional tests into line with the EUIR. The amendment is made under section 2(2) of the ECA and comes into force the day after the Regulations are made. Part 10 makes a consequential amendment to the Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 and to the Cross-Border Insolvency Regulations (Northern Ireland) 2007. Parts 9 and 10 only extend to Northern Ireland. Part 11 makes amendments to the Employment Rights Act 1996 (c. 18) and the Pension Schemes Act 1993 (c. 48). The relevant provisions provide for payment to employees of outstanding sums owed to them in defined circumstances where their employer becomes insolvent. Part 11 applies to England and Wales and Scotland. Part 12 makes amendments to Articles 201 and 228 of the Employment Rights (Northern Ireland) Order 1996 and section 119 of the Pension Schemes (Northern Ireland) Act 1993 to bring those provisions into line with Directive 2008/94 EC of the European Parliament and the Council on the protection of employees in the event of the insolvency. These provisions provide for payment to employees of certain sums owed to them and unpaid pensions contributions in circumstances where their employer becomes insolvent. These amendments are made under section 2(2) ECA and come into force the day after the Regulations are made. They only extend to Northern Ireland. Part 13 makes further amendments to Articles 201 and 228 of the Employment Rights (Northern Ireland) Order 1996 and section 119 of the Pension Schemes (Northern Ireland) Act 1993 to ensure those provisions operate effectively after the withdrawal of the United Kingdom from the European Union. These amendments apply to Northern Ireland and are equivalent to those made by Part 11 for England and Wales and Scotland. In accordance with the Government Better Regulation principles, a proportionate analysis of costs and benefit has been completed. This analysis has found that the overall impact on business will likely be less than £5m per year. An Explanatory Memorandum is also available with these Regulations on www.legislation.gov.uk. Copies have been placed in the Libraries of both Houses of Parliament.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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 0.60.

Basis
the provision says the conduct is “punishable”
Confidence
0.60 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