We are all aware of the adage, “Innocent until Proven Guilty”.
A fundamental principle behind the right to a fair trial is that every person should be presumed innocent unless and until proven guilty.
However, there are some exceptions.
One such exception can be found in legislation more commonly relied on in civil law, and not the criminal law landscape where the terms “guilty” and “innocent” are usually found.
The Companies Act 2006 (the “Act”) forms the primary source of UK company law, and when the final provision was commenced on 1 October 2009, it largely superseded the Companies Act 1985.
The Act codifies certain common law principles, such as those relating to directors’ duties. It transposes into UK law the Takeover Directive and the Transparency Directive of the European Union. It introduces various new provisions for private and public companies, and it applies a single company law regime across the United Kingdom, replacing the two separate (if identical) systems for Great Britain and Northern Ireland.
The Act also creates some criminal offences.
Some of the offences under the Companies Act 2006 reverse the burden of proof, that is, those who commit the offences (usually a company director) are deemed to be guilty until they can prove their innocence, usually by evidencing a specific fact in their Defence (such as taking all reasonable steps to avoid committing the offence).
One clear-cut example is Section 451 of the Act, which concerns the late filing of accounts.
Under section 441 of the Act, the directors of companies must file accounts for each relevant accounting period, before the end of that period. If they fail to do so, each director in default of that obligation commits an offence under section 451 of the Act. That is, every director of the company at the time the accounts were due to be filed, commits an offence if the deadline is missed.
The only Defence available is to prove that all reasonable steps were taken to comply before the end of the accounting period (s.451(2) Companies Act 2006).
Whilst you won’t be taken away in handcuffs, a criminal penalty will be given.
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