SCHEDULE 1Administration and enforcement of Parts 3, 4, and 5
PART 3Administrative sanctions and offences
Administrative sanctions
Interpretation of Part 39
1
In this Part, “regulator” means the FCA or the PRA.
2
In paragraphs 10 and 11, “appropriate regulator” means—
a
in relation to a contravention of a requirement imposed by the PRA on a PRA-authorised person under Part 5 of these Regulations, the PRA; and
b
in relation to any other contravention of these Regulations or of Article 28 of the markets in financial instruments regulation, the FCA.
Public censure10
If the appropriate regulator considers that—
a
a person (“P”) has contravened a requirement imposed by or under these Regulations or by Article 28 of the markets in financial instruments regulation,
b
a member of the management body of P is responsible for the contravention by P of a requirement imposed by or under these Regulations or by Article 28 of that regulation, or
c
another member of the senior management of P is responsible for the contravention by P of a requirement imposed by or under these Regulations or by Article 28 of that regulation,
the appropriate regulator may publish a statement to that effect.
Financial penalties11
1
If the appropriate regulator considers that a person (“P”) has contravened a requirement imposed by or under these Regulations or by Article 28 of the markets in financial instruments regulation, it may impose a penalty of such amount as it considers appropriate on—
a
P;
b
a member of the management body of P if the appropriate regulator considers the person is responsible for the contravention;
c
another member of the senior management of P if the appropriate regulator considers the person is responsible for the contravention.
2
A penalty imposed under this paragraph is payable to the regulator that imposed the penalty and may be recovered as a debt owed to that regulator.
Warning notice12
1
If a regulator proposes to—
a
publish a statement in respect of a person under paragraph 10; or
b
impose a penalty on a person under paragraph 11,
it must give the person a warning notice.
2
A warning notice about a proposal to publish a statement must set out the terms of the statement.
3
A warning notice about a proposal to impose a penalty must state the amount of the penalty.
Decision notice13
1
If, having considered any representations made in response to the warning notice, a regulator decides to—
a
publish a statement under paragraph 10 (whether or not in the terms proposed); or
b
impose a penalty under paragraph 11 (whether or not of the amount proposed),
it must without delay give the person concerned a decision notice.
2
In the case of a statement, the decision notice must set out the terms of the statement.
3
In the case of a penalty, the decision notice must state the amount of the penalty.
4
If a regulator decides to—
a
publish a statement in respect of a person under paragraph 10; or
b
impose a penalty on a person under paragraph 11,
the person may refer the matter to the Tribunal.
5
After a statement under paragraph 10 is published, the regulator concerned must send a copy of it to the person concerned and to any person to whom a copy of the decision notice was given under section 393(4) of the Act M1 (third party rights) (as applied by paragraph 22).
Statements of policy14
1
Each regulator must prepare and issue a statement of policy with respect to—
a
the imposition of penalties under paragraph 11; and
b
the amount of penalties under that paragraph.
2
A regulator's policy in determining what the amount of a penalty should be must include having regard to—
a
the seriousness of the contravention in question in relation to the nature of the requirement contravened;
b
the extent to which that contravention was deliberate or reckless; and
c
whether the person against whom action is to be taken is an individual.
3
A regulator may at any time alter or replace a statement issued by it under this paragraph.
4
If a statement issued under this paragraph is altered or replaced by a regulator, the regulator must issue the altered or replacement statement.
5
A regulator must, without delay, give the Treasury a copy of any statement which it issues under this paragraph.
6
A statement issued under this paragraph by a regulator must be published by the regulator in the way appearing to the regulator to be best calculated to bring it to the attention of the public.
7
The regulator may charge a reasonable fee for providing a person with a copy of the statement.
8
In exercising, or deciding whether to exercise, its power under paragraph 11 in the case of any particular contravention, a regulator must have regard to any statement of policy published by it under this paragraph and in force at the time when the contravention in question occurred.
Statements of policy: procedure15
1
Before a regulator issues a statement under paragraph 14, the regulator must publish a draft of the proposed statement in the way appearing to the regulator to be best calculated to bring it to the attention of the public.
2
The draft must be accompanied by a notice that representations about the proposal may be made to the regulator within a specified time.
3
Before issuing the proposed statement the regulator must have regard to any representations made to it in accordance with sub-paragraph (2).
4
If the regulator issues the proposed statement it must publish an account, in general terms, of—
a
the representations made to in accordance with sub-paragraph (2); and
b
its response to them.
5
If the statement differs from the draft published under sub-paragraph (1) in a way which is, in the opinion of the regulator, significant, the regulator must (in addition to complying with sub-paragraph (4)) publish details of the difference.
6
A regulator may charge a reasonable fee for providing a person with a copy of a draft published by it under sub-paragraph (1).
7
This paragraph also applies to a proposal to alter or replace a statement.
Offences
Misleading the FCA or PRA16
1
A person must not, for the purposes of compliance or purported compliance with a requirement imposed by or under these Regulations or by Article 28 of the markets in financial instruments regulation knowingly or recklessly give a regulator information which is false or misleading in a material particular.
2
A person must not provide information to another person—
a
knowing; or
b
being reckless as to whether,
the information is false or misleading in a material particular and knowing that the information is to be provided to, or to be used for the purposes of providing information to, a regulator in connection with the discharge of its functions under these Regulations or with respect to Article 28 of the markets in financial instruments regulation.
3
A person who contravenes sub-paragraph (1) or (2) is guilty of an offence.
4
A person guilty of an offence under this paragraph is liable—
a
on summary conviction—
i
in England and Wales, to a fine;
ii
in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine.
Restriction on penalties17
1
A person who is convicted of an offence under these Regulations or under the Act as applied by these Regulations is not subsequently liable to a penalty under paragraph 11 in respect of the same acts or omissions that constituted the offence.
2
A person who is liable to a penalty under paragraph 11 is not subsequently liable for an offence under these Regulations in respect of the same acts or omissions that constituted the contravention of a requirement imposed by or under these Regulations for the purposes of that penalty.