Criminal Offences Gateway Form

Criminal Offences Gateway Form

This form should be sent to

Your completed form should be accompanied by the following:

your draft legislation;
a justice impact test (
the policy summary sheet of your impact assessment;
(for statutory instruments) your explanatory memorandum.

Section 1: General Information

Legislation title

Department

Policy lead and contact details

Legal lead and contact details

Bill team manager and contact details (for primary legislation)

For non-ministerial departments or agencies, the ministerial department responsible for the legislation and contact details for the lawyer

Section 2: Timing

Gateway clearance is not required prior to publication of a consultation paper, but should be obtained before collective Cabinet Committee clearance is sought.

Date by which a response is needed (if less than 4 weeks, please provide reasons)

EU and other international obligations (please provide implementation deadlines, if relevant)

Risks (please provide details if your timetable is driven by particular risks, for example legal challenge or infraction proceedings)

Introduction/laying date (please specify if you are working towards a particular date)

Section 3: Background

The information in this section will provide the broad context for your proposals.

Current position(please provide a brief summary of the background to your proposals)

Policy aim (please summarise the broad aims of your legislation, including any particular drivers such as EU or other international obligations, case law or a particular event, with links where relevant)

Public commitments (please provide links to relevant public commitments, for example press notices or Ministerial statements)

Public consultation (please provide a link to your consultation document, if relevant)

Collective Cabinet clearance (if you have already written for collective Cabinet clearance, please provide details and copies of correspondence including from the Ministry of Justice)

Wider context (please provide details if your proposals are linked to other statutory instruments/proposals, whether already in place or planned, or if they are part of a wider policy review)

Repeals and consolidation (please provide a brief summary if your legislation will repeal and/or consolidate existing legislation)

Section 4: Enforcement

The information in this section will provide an overview of your enforcement proposals, including your broad justification for relying on the criminal law.Non-criminal enforcement includes (but is not limited to) civil fines, stop notices, improvement notices, withdrawal or suspension of licences and informal advice.

Alternatives to civil sanctions and criminal offences(have you considered whether alternatives to civil sanctions or criminal offences would be sufficient for enforcement purposes? For example: the withdrawal of permissions within a permitting regime, use of disciplinary powers, judicial review?)

Civil sanctions(have you considered civil sanctions, for example civil fines or improvement notices?)

Hierarchy of sanctions (if your regime contains non-criminal enforcement mechanisms, please explain how they relate to the powers to prosecute, for example whether criminal prosecutions will be limited – by the legislation itself or by prosecution guidance – to a failure to comply with non-criminal sanctions or to serious or persistent breaches of the obligations)

Existing criminal law(have you considered whether the existing criminal law would be sufficient (see Annex A for examples of generally applicable criminal offences)?)

Reasons for relying on the criminal law (please set out any particular reasons for relying on the criminal law to enforce your regime, for example serious risks arising out of a failure to comply with parts of the regime, international obligations to create offences, cross-border enforcement issues, resources. Please provide case studies to support your justification for creating offences if available)

Repeals and consolidation (please clarify whether your proposals will reduce the number and/or scope of existing offences)

Gateway clearance (if you have previously obtained gateway clearance for related proposals, please provide the title and subject matter of the legislation concerned and the approximate date of gateway clearance)

Section 5: Criminal Offences

Gateway clearance is needed for entirely new criminal offences, repeals and re-enactments, and extensions of existing criminal liability.

For each offence you propose, please list (i) the conduct and mental elements of the offence(actus reus and mens rea), (ii) any defences and, if relevant, (iii) how it extends the scope of existing offences.

Location of offence in your draft legislation (eg article 3(2)) / Details of proposed offence / Justification (why the offence is a proportionate response to the problem identified) / Mode of trial (summary only, triable either way, indictable only)and
Maximum penalty (with details of precedents, if relevant)

Annex A: Generally applicable criminal offences

Fraud and False Statements

Act / Offence / Maximum penalty
Section 2
Fraud Act 2006 / Fraud by false representation
A person is in breach of this section if he
(a) dishonestly makes a false representation, and
(b) intends, by making the representation–
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss / Triable either way
On summary conviction:
6 months’ imprisonment and/or statutory maximum fine
On indictment:
10 years’ imprisonment and/or a fine
Section 4
Fraud Act 2006 / Fraud by abuse of position
A person is in breach of this section if he–
(a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b)dishonestly abuses that position, and
(c)intends, by means of the abuse of that position–
(i)to make a gain for himself or another, or
(ii)to cause loss to another or to expose another to a risk of loss / Triable either way
On summary conviction:
6 months’ imprisonment and/or statutory maximum fine
On indictment:
10 years’ imprisonment and/or a fine
Section 19
Theft Act 1968 / False statements by company directors, etc
Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular… / Triable either way
7 years’ imprisonment
Section 5
Perjury Act 1911 / False statutory declarations and other false statements without oath
If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made–
(a)in a statutory declaration; or
(b)in an abstract, account, balance sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return, or other document which he is authorised or required to make, attest, or verify, by any public general Act of Parliament for the time being in force; or
(c)in any oral declaration or oral answer which he is required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,
he shall be guilty… / Triable either way
2 years’ imprisonment and/or a fine
Section 6
Perjury Act 1911 / False declarations, etc, to obtain registration, etc, for carrying on a vocation
If any person–
(a)procures or attempts to procure himself to be registered on any register or roll kept under or in pursuance of any public general Act of Parliament for the time being in force of persons qualified by law to practise any vocation or calling; or
(b)procures or attempts to procure a certificate of the registration of any person on any such register or roll as aforesaid,
by wilfully making or producing or causing to be made or produced either verbally or in writing, any declaration, certificate, or representation which he knows to be false or fraudulent, he shall be guilty… / Triable either way
2 years’ imprisonment and/or a fine
Section 1
Forgery and Counterfeiting Act 1981 / Forgery
A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice / Triable either way
On summary conviction:
6 months’ imprisonment and/or statutory maximum fine
On indictment:
10 years’ imprisonment
Section 3
Forgery and Counterfeiting Act 1981 / Using a false instrument
It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice / Triable either way
On summary conviction:
6 months’ imprisonment and/or statutory maximum fine
On indictment:
10 years’ imprisonment

Failing to provide information/assistance when required to do so

Act / Offence / Maximum penalty
Section 3
Fraud Act 2006 / Fraud by failing to disclose information
A person is in breach of this section if he–
(a)dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
(b)intends, by failing to disclose the information–
(i)to make a gain for himself or another, or
(ii)to cause loss to another or to expose another to a risk of loss / Triable either way
On summary conviction:
6 months’ imprisonment and/or statutory maximum fine
On indictment:
10 years’ imprisonment and/or a fine

Information offence

Act / Offence / Maximum penalty
Section 55
Data Protection Act 1988 / Unlawful obtaining etc of personal data
A person must not knowingly or recklessly, without the consent of the data controller–
(a) obtain or disclose personal data or the information contained in personal data, or
(b)procure the disclosure to another person of the information contained in personal data
NB this offence is limited – see s.55(2) / Triable either way
On summary conviction
Fine not exceeding statutory maximum
On indictment
A fine

Obstructing an Officer/Authorised Person

Act / Offence / Maximum penalty
Common law / Assault
Intentionally or recklessly causing another to apprehend immediate and unlawful violence
Battery
Intentionally or recklessly applying unlawful force / Summary only
6 months’ imprisonment and/or statutory maximum fine
Offences Against the Person Act 1861 / Section 47: assault occasioning actual bodily harm
Section 20: assault occasioning grievous bodily harm
Section 18: wounding with intent to cause grievous bodily harm / Triable either way
5 years’ imprisonment
Triable either way
5 years’ imprisonment
Indictable only
Life imprisonment

Theft

Act / Offence / Maximum penalty
Section 1
Theft Act 1968 / Basic definition of theft
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it / Triable either way
7 years’ imprisonment

Secondary liability and inchoate offences

-automatically apply to new offences-

Secondary liability

Secondary party commits the same offence as the principal offender

Aiding, abetting, counselling or procuring the offence (s.44 of the Magistrates’ Court Act 1980 and s.8 of the Accessories and Abettors Act 1861)

Inchoate offences

These offences apply whether or not the principal offence is actually committed

Attempt (Criminal Attempts Act 1981)

Conspiracy (Criminal Law Act 1977)

Encouraging or assisting the offence (ss.44 and 45 of the Serious Crime Act 2007)