UK Offence Report

False claims or evidence

rule 117 of The Payment and Electronic Money Institution Insolvency (Scotland) Rules 2022

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

117 If a creditor produces under rule 116 a statement of claim or documentary evidence of debt or other evidence which is false— a the creditor is guilty of an offence unless the creditor shows that the creditor neither knew nor had reason to believe that the statement of claim or documentary evidence of debt or other evidence was false, b the institution is guilty of an offence if the institution— i knew or became aware that the statement of claim or documentary evidence of debt or other evidence was false, ii failed as soon as is reasonably practicable after acquiring such knowledge to report it to the administrator.

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 This is the text as originally made; later amendments are not shown here.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 institution
Conduct
making a false or misleading statement
Fault element
Objective fault
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened and that it fell below the standard the provision sets. That is an objective test - what a reasonable person in the same position would have done, not what this defendant actually thought.

What a institution personally believed or intended is not the question; the standard is what was reasonable.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: objective standard in the offence-creating words: reasonably practicable.

What would breach rule 117?

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. Entering a figure on a form or return that is known to be wrong under the Payment and Electronic Money Institution Insolvency (Scotland) Rules 2022.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

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
25 November 2022
In force from
19 December 2022
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 procedure in Scotland for the payment institution special administration process or electronic money institution special administration process (as the case may be) under the Payment and Electronic Money Institution Insolvency Regulations 2021, S.I. 2021/716 (“the Regulations”). The main features of the special administration process in each case under the Regulations are that— a an administrator is appointed, and the institution enters special administration, by court order, b special administration objectives and procedures apply, c specific provision is made about how those procedures apply to small institutions, d the administrator is to pursue the special administration objectives in accordance with the statement of proposals, e in other respects the procedure is the same as for administration under Schedule B1 to the Insolvency Act 1986 (c. 45), subject to modifications and the inclusion of certain liquidation provisions of that Act. Part 2 of the Rules sets out the procedure for applying for a special administration order. Part 3 of the Rules sets out the process of the special administration. Part 4 of the Rules provides for the expenses of the special administration. Part 5 of the Rules sets out the rules concerning relevant funds claims. Part 6 of the Rules provides for the pursuit of Objective 1 from the Regulations (relating to the return of relevant funds). Part 7 of the Rules provides for claims by and distributions to creditors. Part 8 of the Rules sets out rules concerning the administrator and there are further rules concerning the administrator in Chapter 6 of Part 12. Part 9 of the Rules provides for the end of the special administration. Part 10 of the Rules sets out special rules in respect of court procedure and practice. Part 11 of the Rules provides for the application of section 216 of the Insolvency Act 1986 (prohibited names). Part 12 of the Rules contains provisions of general effect. Part 13 of the Rules provides for general interpretation and application. The Rules apply to institutions incorporated as companies, but not to the types of institution that are excluded from the application of the Regulations. A de minimis impact assessment of the effect these Rules will have on business and the voluntary sector is available from HM Treasury, 1 Horseguards Road, London SW1A 2HQ or on www.gov.uk and is published alongside these Rules on www.legislation.gov.uk.

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 0.96.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.96 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