Insolvency Act 1986, section 350

Scheme of this Chapter

Part IX Bankruptcy

(1)Subject to section 360(3) below, this Chapter applies [F934—

(a)where an adjudicator has made a bankruptcy order as a result of a bankruptcy application, or

(b)F934] where the court has made a bankruptcy order on a bankruptcy petition.

(2)This Chapter applies whether or not the bankruptcy order is annulled, but proceedings for an offence under this Chapter shall not be instituted after the annulment.

(3)Without prejudice to his liability in respect of a subsequent bankruptcy, the bankrupt is not guilty of an offence under this Chapter in respect of anything done after his discharge; but nothing in this Group of Parts prevents the institution of proceedings against a discharged bankrupt for an offence committed before his discharge.

[F935 (3A)Subsection (3) is without prejudice to any provision of this Chapter which applies to a person in respect of whom a bankruptcy restrictions order is in force.F935]

(4)It is not a defence in proceedings for an offence under this Chapter that anything relied on, in whole or in part, as constituting that offence was done outside England and Wales.

(5)Proceedings for an offence under this Chapter or under the rules shall not be instituted except by the Secretary of State or by or with the consent of the Director of Public Prosecutions.

(6)A person guilty of any offence under this Chapter is liable to imprisonment or a fine, or both.

Definitions used in section 350 1

consent

(3) But where the administrator has made a statement under paragraph 52(1)(b) “consent” means—

(a) consent of each secured creditor of the company, or

(b) if the administrator thinks that a distribution may be made to preferential creditors, consent of—

(i) each secured creditor of the company, and

(ii) the preferential creditors of the company.

Defined in Sch.B1 para.108(3) · see it in the full Act

Cases considering section 350 5

Mohammad Razi Khan v Arvinder Singh-Sall & Anor

[2023] EWCA Civ 1119 · 6 October 2023Limits

The court noted that bankruptcy offences may be committed whether or not the bankruptcy is annulled, but proceedings cannot be instituted after annulment. (see para [70])

Attorney General Reference No. 1 of 2004

[2004] EWCA Crim 1025 · 29 April 2004Disapplies

The restriction on who may prosecute did not affect Article 6 compatibility. Article 6 concerns the fairness of criminal trial procedure, not the decision whether to prosecute. (see para [91])

Boris Franz Becker (a bankrupt) v Mark Christopher Ford & Ors

[2024] EWHC 1001 (Ch) · 1 May 2024

The provision was cited to explain that acts or omissions after discharge cannot constitute a bankruptcy offence. This formed part of the contextual explanation of the consequences of discharge. (see para [29])

What each judgment says about section 350 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F934Words in s. 350(1) inserted (6.4.2016) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 19 para. 42; S.I. 2016/191, art. 2 (with art. 3)
  2. F935S. 350(3A) inserted (1.4.2004) by 2002 c. 40, ss. 257(3), 279, Sch. 21 para. 2 (with s. 249(6)); S.I. 2003/2093, art. 2(2), Sch. 2 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))

Modifications

  1. C1091Ss. 349, 350(1)(2)(4)-(6) applied (with modifications) by S.I. 1986/1999, art. 3, Sch. 1 Pt. II