These policies are set out in the Decision Procedure and Penalties Manual (DEPP), a module of the FSA Handbook. The FSA will not subsequently apply higher standards of conduct when deciding whether to take enforcement action for a breach of the principles.
3 Use of information gathering and investigation powers
It is up to the company to decide whether to provide such material to the FSA. The FSA is subject to strict legal restrictions on the disclosure of confidential information (as defined in section 348 of the Act), the breach of which is a criminal offense (under section 352 of the Act).
4 Conduct of investigations
In the event that a company's supervisor becomes part of the investigation group, the Danish FSA will notify the company of this in the normal way. The Danish FSA will also, where relevant, explain how the answers can be used in cases against them.
5 Settlement
At the other end of the spectrum, the FSA expects settlement talks following a decision notice or second oversight notice to be rare. The last point the FSA will send a Phase 1 letter is when the person receives the preliminary study report.
6 Publicity
The FSA will also review what information about the case should be included in the FSA Registry. Regulatory notices that change a company's Part IV consent at the FSA's own initiative (see Section 8 of this guide).
7 Financial penalties and public censures
The FSA's policy statement on the amount of a fine is set out in DEPP 6.5. The FSA will consider all the circumstances of the case before deciding whether a private warning is appropriate.
8 Variation and cancellation of permission on the FSA's own initiative and intervention against incoming firms
The FSA must be satisfied that the impact of any use of the initiative power will be likely. Examples of the types of circumstances in which the FSA may revoke a company's Part IV approval include: An example is when the FSA needs to oversee an orderly wind down of the company's regulated activities (see SUP 6.4.22 (When will the FSA to grant a request for withdrawal of consent)).
This could be, for example, when the AMF proposes to impose a financial penalty on the firm under Article 206 of the law. Exercising the power under section 47 to vary or cancel a firm's Part IV permit in reliance of an overseas regulator: FSA policy. AMF's policy for exercising its power of intervention against entering firms under Article 196 of the law.
9 Prohibition Orders and withdrawal of approval
In these circumstances the FSA will consider whether the conduct or matter in question is relevant to the individual's capacity and decency. The FSA will assess an individual's ability and suitability to perform regulated functions against the criteria set out in FIT 2.1 (Probity, Integrity and Reputation); FIT 2.2 (Competence and Ability) and FIT 2.3 (Financial Strength). Other powers that may be relevant when the FSA is considering whether to use its power to issue a prohibition order.
The FSA considers that a search by a firm on the FSA register is an essential part of the statutory duty to take reasonable care to ensure that firms do not employ or otherwise permit prohibited individuals to perform functions relating to to carry out regulated activities. In addition, the FSA requires firms to check the FSA register when applying for approval under section 59 of the Act. This requires a firm ('A') to take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by a contractor of A in relation to the carrying on by A of a regulated activity not, unless the FSA assesses the performance by that person of the controlled function to which the approval relates.
10 Injunctions
An application by the FSA to a court under section 380(2) or 381(2) for an order requiring a person to take such action may not be appropriate where, for example, that person has already taken or intends to take appropriate remedial action on its own initiative or based on the decision of another regulatory body (such as a takeover commission or a recognized investment exchange). In these cases, the FSA may consult with the relevant regulatory authority before seeking an injunction. This includes whether the FSA (or previous regulator) has already taken any disciplinary, remedial or safeguarding action against the person.
In most cases, the FSA will consult with other relevant regulatory authorities before making an application for a contract. For an application for such an interim order to succeed, the FSA will need to show. In such an emergency, the FSA may request a temporary ban without first consulting the person.
11 Restitution and redress
In these cases, it may not be appropriate for the FSA to use its powers to obtain restitution. The FSA will consider the availability of recourse through the financial ombudsman service or the compensation scheme. In certain cases, however, it will be more appropriate for the FSA to pursue restitution.
Where the solvency of the Company or the unauthorized person would be jeopardized by the payment of a refund, the FSA will consider whether it is appropriate to request a refund. In those cases, the FSA may consider obtaining a compulsory insolvency order against the company or unauthorized person in lieu of restitution. The FSA will consider the availability of its power to obtain a writ of insolvency against the company or unauthorized person involved.
12 Prosecution of Criminal Offences
In these cases, the FSA follows the Home Office Guidance on the warning of offenders, which is currently included in the Home Office Circular 18/1994. The FSA will not publish the warning, but will make it available to parties with access to the National Police Computer. If the offender is a firm or Approved Person, a warning issued by the FSA will be part of the firm's or Approved Person's registration under DEPP 6.2.1 G(3).
If necessary, the FSA will consider caution in deciding whether to take disciplinary action for subsequent regulatory misconduct by the firm or approved person. When the FSA decides whether to initiate criminal proceedings rather than impose a market abuse sanction in relation to that misconduct, it will apply the basic principles set out in the Code for Crown Prosecutors. Similarly, it is the policy of the FSA not to initiate a criminal prosecution for market misconduct where the FSA has brought or seeks to bring disciplinary proceedings for market abuse arising from the same allegations.
13 Insolvency
Insolvency regime Relevant sections of the Act Administration Sections 361 and 362(3)
This may affect the effectiveness of the FSA's use of its powers to seek injunctions and restitution orders from the court. In other cases, the FSA may combine direct enforcement action against a trustee and/or trustee with the use of one or more of the powers in Sections 254, 257 and 258. Exercise of powers in respect of recognized schemes: Section 267 of the Act - power to suspend the promotion of a scheme recognized under Section 264: The Policy of the FSA.
The FSA is therefore also free to take direct enforcement action against those persons. Exercise of powers with regard to recognized schemes: Sections 279 and 281 of the Act – Powers to withdraw recognition of recognized schemes pursuant to Section 270 or Section 272: the policy of the Wft. The general factors that the FSA may consider include, but are not limited to, those set out in paragraphs 14.1(1) to (9) (the conduct of the scheme operator and of the trustee or custodian will, of course, also be held in respect of each of these factors).
15 Disqualification of auditors and actuaries
The FSA will regard as particularly serious any breach of rules that has led to, or is likely to lead to, loss to consumers or damage to confidence in the financial system or an increased risk that a firm can be used for the purposes of financial crime regard. ;. The FSA will remove a disqualification if he is convinced that the disqualified person will fulfill the relevant duty (and other duties under the Act) in the future. When considering whether to grant or refuse a request for a disqualification to be removed on these grounds, the FSA will take into account all the circumstances of a particular case.
16 Disapplication orders against members of the professions
However, the FSA may in some cases consider it appropriate to disapply an exemption where it determines that the member concerned is not fit and proper to carry out exempted regulated activities in accordance with Section 327 of the Act (Exemption from the general prohibition). A private warning may be appropriate when the FSA has concerns about a member's fitness and decency, but believes its concerns regarding the conduct of exempt regulated activities are better addressed by a private warning than by a non-application of the the member's exemption. The FSA may refrain from issuing a disapplication decision pending the processing of the application for authorization.
Likewise, the FSA will not revoke an expulsion order unless and until it is satisfied that the person concerned is fit and proper to carry out exempt regulated activities generally or those specific exempt regulated activities in relation to which the exemption has not been applied not. For example, if the order rejecting the exemption was made on the basis of a breach of rules made under 332(1), the FSA may accept an application for authorization notwithstanding the rejection order. However, if the order was made on the basis of a breach of the rules of a designated professional body resulting in a significant risk to clients in relation to the provision of exempt regulated activities, it is unlikely that an application for approval by the member would be accepted by the FSA before the revocation of the rejection order.
17 [deleted]
18 Cancellation of approval as sponsor on the FSA's own initiative
Guidelines on investigation of cases of interest or concern to the Financial Services Authority and other prosecuting and investigating agencies
- The FSA
- BERR
- ACPO and ACPOS
- COPFS
- The PPS
The following are indicators of whether action by the FSA or one of the other agencies is more appropriate. No single feature of the case must be considered in isolation, but rather the whole case must be considered in the round. Where it is likely that the investigator will seek assistance from overseas regulators with functions similar to those of the FSA.
Where there are separate parts of the case which are best investigated with regulatory expertise. When considering whether to bring a non-criminal case, they will take into account the factors they consider relevant (eg in the case of market abuse cases brought by the FSA, these are set out in section 6.2 of the FSA's decision-making procedure and penalty handbook ). The FSA's powers to collect and investigate information are set out in Part XI of the 2000 Act and in s.97 in relation to its functions in Part VI.
