UK Offence Report

Offences of failure to provide evidence and of tampering with evidence

article 7(2) of The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions) Order 2021

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

2 A person commits an offence if, without reasonable excuse, the person conceals, destroys, distorts or alters, or arranges for the concealment, destruction, distortion or alteration of, anything that the person knows to be required, or has reasonable grounds for believing might be required, to be provided to the Scottish Ministers by virtue of a notice under— a article 4 or 5, or b section 79 or 80 of the 2021 Act.

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 This is the text as originally made; later amendments are not shown here.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

2 A person commits an offence if, without reasonable excuse, the person conceals, destroys, distorts or alters, or arranges for the concealment, destruction, distortion or alteration of, anything that the person knows to be required, or has reasonable grounds for believing might be required, to be provided to the Scot

What would breach article 7(2)?

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 Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions) Order 2021.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
3 months

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
24 November 2021
In force from
17 December 2021
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision in consequence of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15) (“the 2021 Act”). The 2021 Act establishes a scheme of financial redress and related support for and in respect of survivors of historical child abuse in certain residential care settings in Scotland. Article 1 provides that articles 2 and 3 of the Order extend to England and Wales only. The remainder of the Order extends to England and Wales, Northern Ireland and Scotland. Article 2 applies where a charity subject to the control of the High Court in England and Wales makes a financial contribution to the redress scheme established by the 2021 Act. It provides that financial contributions made by such charities will be treated as being in furtherance of the charity’s charitable purposes and consistent with the charity’s constitution or trusts (section 353(1) of the Charities Act 2011 (c. 25) defines “trusts”), providing public benefit, not being contrary to the interests of the charity, and being within the powers exercisable by the charity trustees of the charity. Article 3 makes provision in consequence of section 44 of the 2021 Act. Section 44 of the 2021 Act sets out that an application for a redress payment must provide the Scottish Ministers with information about relevant payments which the applicant (or the person to whom the application relates) has received or becomes entitled to before their application is determined. This article provides that, where the applicant has entered into a settlement or other agreement relating to a relevant payment that forbids them from disclosing information about relevant payments and which is governed by the law of England and Wales, the disclosure of that information will not be regarded as a breach under the law of England and Wales of the settlement or other agreement. Article 4 makes provision in consequence of section 79 of the 2021 Act, and provides that the Scottish Ministers may by notice in writing compel individuals or organisations (other than an applicant for a redress payment or the Crown) to provide information, documents, objects, other items of evidence or evidence in the form of a written statement, which may be relevant to an application for such a payment. An individual or organisation may challenge the requirement to provide the information where they are unable to comply with the notice, or it is not reasonable in all the circumstances to require them to comply with it. A notice does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation or any other statutory requirement relating to the disclosure of information, or give rise to the commission of an offence, or where the individual or organisation would be permitted to refuse to comply with it in connection with court proceedings in England and Wales or Northern Ireland or, as the case may be, Scotland. Article 5 makes provision in consequence of section 80 of the 2021 Act, and provides the Scottish Ministers with a power to obtain information from third parties for the purposes of section 42 of the 2021 Act (which relates to the deduction of relevant payments from redress payments). The Scottish Ministers may by notice, in writing, require a person (other than the applicant or the Crown) to provide information to the panel with details of relevant payments. However, a notice does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation or any other statutory requirement relating to the disclosure of information, or give rise to the commission of an offence, or where the person would be permitted to refuse to comply with it in connection with court proceedings in England and Wales or Northern Ireland or, as the case may be, Scotland. Articles 4 and 5 only apply in Scotland to the extent that it would not be possible to require a person to provide information, documents, objects or other evidence, or details of a relevant payment, under section 79 or, as the case may be, section 80 of the 2021 Act. Article 6 makes provision in consequence of section 81 of the 2021 Act and provides that Redress Scotland may ask the Scottish Minsters to issue a notice to provide evidence or issue a notice to provide details regarding previous payments which a person has received in relation to relevant abuse. Article 7(1) makes provision in consequence of section 84(1) of the 2021 Act and provides that any person who fails to comply with a notice under article 4 or 5 to provide evidence, and does so without reasonable excuse, commits a criminal offence. Article 7(2) provides that any such individual or organisation also commits a criminal offence if, without reasonable excuse, they take action to conceal, destroy, alter, or distort evidence which either they know is required, or they have reasonable grounds for believing might be required, under a notice given by the Scottish Ministers under article 4 or 5 or under section 79 or 80 of the 2021 Act. The maximum penalty for either of the aforementioned offences is imprisonment for up to three months or a fine up to the value of level 3 on the standard scale, or both. The value of level 3 on the standard scale is currently £1,000. A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.

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 “commits 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