Section A48: Prosecution of delinquent officers of company, Insolvency Act 1986

This section applies where a moratorium has been obtained for a company.

If it appears to the monitor that any past or present officer of the company has committed an offence in connection with the moratorium, the monitor must forthwith—

report the matter to the appropriate authority, and

provide the appropriate authority with such information and give the authority such access to and facilities for inspecting and taking copies of documents (being information or documents in the possession or under the control of the monitor and relating to the matter in question) as the authority requires.

In subsection (2), "the appropriate authority"—

in the case of a company registered in England and Wales, means the Secretary of State,

in the case of a company registered in Scotland, means the Lord Advocate, and

in the case of an unregistered company means—

if it has a principal place of business in England and Wales but not Scotland, the Secretary of State,

if it has a principal place of business in Scotland but not England and Wales, the Lord Advocate,

if it has a principal place of business in both England and Wales and Scotland, the Secretary of State and the Lord Advocate, and

if it does not have a principal place of business in England and Wales or Scotland, the Secretary of State.

Where a matter is reported to the Secretary of State under subsection (2), the Secretary of State may, for the purpose of investigating the matter and such other matters relating to the affairs of the company as appear to the Secretary of State to require investigation, exercise any of the powers which are exercisable by inspectors appointed under section 431 or 432 of the Companies Act 1985.

For the purpose of such an investigation any obligation imposed on a person by any provision of the Companies Acts to produce documents or give information to, or otherwise to assist, inspectors so appointed is to be regarded as an obligation similarly to assist the Secretary of State in the Secretary of State's investigation.

Where a question is put to a person in exercise of the powers conferred by subsection (4), the person's answer may be used in evidence against them.

However, in criminal proceedings in which the person is charged with an offence other than a false statement offence—

no evidence relating to the answer may be adduced, and

no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of the person.

In subsection (7) "false statement offence" means—

an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or

an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).

Where a prosecuting authority institutes criminal proceedings following any report under subsection (2), the monitor, and every officer and agent of the company past and present (other than the defendant or defender), must give the authority all assistance in connection with the prosecution which they are reasonably able to give.

For this purpose—

"agent" includes any banker or solicitor of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company;
"prosecuting authority" means the Director of Public Prosecutions, the Lord Advocate or the Secretary of State.

The court may, on the application of the prosecuting authority, direct a person who has failed to comply with subsection (9) to comply with it.

Section A48: Prosecution of delinquent officers of company

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