The Financial Services and Markets Act 2000 (Consequential and Transitional Provisions) (Miscellaneous) (No. 2) Order 2001

Rehabilitation of offenders—transitional modification of the Banking Act

5.—(1) Section 95 of the Banking Act(1) (restriction of Rehabilitation of Offenders Act 1974(2)) has effect until commencment as if the following provisions were inserted after paragraph (5)—

“(5A) Nothing in section 4(1) (restriction on evidence as to spent convictions in proceedings) shall prevent the determination in any proceeding (including proceedings on appeal to any court) arising out of any relevant decision of the Authority, or prevent the admission or requirement in any such proceedings of any evidence, relating to a person’s previous convictions for any such offence as is mentioned in subsection (1) above or the circumstances ancillary thereto.

(5B) A conviction for such an offence as is mentioned in subsection (1) above shall not be regarded as spent for the purposes of section 4(2) (questions relating to an individual’s previous convictions) if—

(a) the question is put by or on behalf of the Authority and the individual is a person who is or is seeking to become a director, controller or manager of a person who—

(i) has made an application for permission to accept deposits under Part IV of the Financial Services and Markets Act 2000 (“Part IV”) which has not been determined,

(ii) a person who has been given such permission (albeit that permission is not yet in force), or

(iii) a transitional authorised person who is of such a description, and with respect to whom such conditions are met, that (if he is of that description, and if those conditions are met, immediately before commencement) he will, at commencement, be treated as having permission to accept deposits under Part IV, or

(b) the question is put on behalf of such a person and the individual is or is seeking to become a director, controller or manager of that person,

and the person questioned is informed that by virtue of this section convictions for any such offence are to be disclosed.

(5C) Section 4(3)(b) (spent convictions not to be ground for excluding person from office, occupation etc.) shall not—

(a) prevent the Authority from refusing to give, varying or cancelling permission to accept deposits under Part IV on the ground that an individual is not a fit and proper person to be a director, controller or manager of the person concerned or from imposing a requirement under Part IV that relates to the acceptance of deposits requiring the removal of an individual as director, controller or manager of such a person, or

(b) prevent—

(i) a person who has made an application for permission to accept deposits under Part IV which has not been determined,

(ii) a person who has been given such permission (albeit that permission is not yet in force), or

(iii) a transitional authorised person who is of such a description, and with respect to whom such conditions are met, that (if he is of that description, and if those conditions are met, immediately before commencement) he will, at commencement, be treated as having permission to accept deposits under Part IV,

from dismissing or excluding an individual from being a director, controller or manager of that person,

• by reason, or partly by reason, of a spent conviction of that individual for such an offence as is mentioned in subsection (1) above or any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.

(5D) For the purposes of subsections (5B) and (5C) above an application for permission by a person is not determined until the determination of the Authority is communicated to the person.

(5E) In subsections (5B) and (5C)—

“commencement” means the beginning of the day on which section 19 of the Financial Services and Markets Act 2000 comes into force;

“director”, “controller” and “manager” have the meanings given by that Act;

“transitional authorised person” has the meaning given by the Financial Services and Markets Act 2000 (Consequential and Transitional Provisions) (Miscellaneous) (No. 2) Order 2001.

(5F) In subsection (5A), “relevant decision” means a decision—

(a) to refuse an application for permission to accept deposits under Part IV,

(b) to impose a requirement under Part IV that relates to the acceptance of deposits,

(c) to vary or to cancel permission to accept deposits given under Part IV, or

(d) to refuse to vary or cancel such permission,

except any such decision made by the Authority as a result of a direction under section 405 of the Financial Services and Markets Act 2000 (directions in relation to third countries).”.

(1)

Amended by the Bank of England Act 1998 (c. 11) Schedule 5. Repealed by the Police Act 1997 (c. 50) Schedule 10 from a day to be appointed.

(2)

1974 c. 53.