F1Part 8AShort selling
Breach of short selling F4regulationetc
Word in cross-heading preceding s. 131G substituted (1.11.2012) by The Financial Services and Markets Act 2000 (Short Selling) Regulations 2012 (S.I. 2012/2554), regs. 1(1), 2(6)
131GPower to impose penalty or issue censure
1
This section applies if the F5FCA is satisfied that a person has contravened—
a
any provision of F3 the short selling regulation ; or
b
any requirement imposed on the person under section 131E or 131F.
2
The F5FCA may impose a penalty of such amount as it considers appropriate on—
a
the person who contravened the provision or requirement; or
b
any person who was knowingly concerned in the contravention.
3
It may, instead of imposing a penalty on a person, publish a statement censuring the person.
4
The F5FCA may not take action against a person under this section after the end of the limitation period unless, before the end of that period, it has given a warning notice to the person under section 131H.
5
“ The limitation period ” means the period of three years beginning with the first day on which the F5FCA knew of the contravention.
6
For this purpose the F5FCA is to be treated as knowing of a contravention if it has information from which the contravention can reasonably be inferred.
131HProcedure and right to refer to Tribunal
1
If the F5FCA proposes to take action against a person under section 131G, it must give the person a warning notice.
2
A warning notice about a proposal to impose a penalty must state the amount of the penalty.
3
A warning notice about a proposal to publish a statement must set out the terms of the statement.
4
If the F5FCA decides to take action against a person under section 131G, it must give the person a decision notice.
5
A decision notice about the imposition of a penalty must state the amount of the penalty.
6
A decision notice about the publication of a statement must set out the terms of the statement.
7
If the F5FCA decides to take action against a person under section 131G, the person may refer the matter to the Tribunal.
131IDuty on publication of statement
After a statement under section 131G(3) is published, the F5FCA must send a copy of the statement to—
a
the person in respect of whom it is made; and
b
any person to whom a copy of the decision notice was given under section 393(4).
131JImposition of penalties under section 131G: statement of policy
1
The F5FCA must prepare and issue a statement of its policy with respect to—
a
the imposition of penalties under section 131G; and
b
the amount of penalties under that section.
2
The F5FCA's policy in determining what the amount of a penalty should be must include having regard to—
a
the seriousness of the contravention;
b
the extent to which the contravention was deliberate or reckless; and
c
whether the person on whom the penalty is to be imposed is an individual.
3
The F5FCA may at any time alter or replace a statement issued under this section.
4
If a statement issued under this section is altered or replaced, the F5FCA must issue the altered or replaced statement.
5
The F5FCA must, without delay, give the Treasury a copy of any statement which it publishes under this section.
6
7
The F5FCA may charge a reasonable fee for providing a person with a copy of the statement.
8
In exercising, or deciding whether to exercise, a power under section 131G in the case of any particular contravention, the F5FCA must have regard to any statement of policy published under this section and in force at a time when the contravention occurred.
131KStatement of policy: procedure
1
2
The draft must be accompanied by notice that representations about the proposal may be made to the F5FCA within a specified time.
3
Before issuing the proposed statement, the F5FCA must have regard to any representations made to it in accordance with subsection (2).
4
If the F5FCA issues the proposed statement it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2); and
b
its response to them.
5
6
The F5FCA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1).
7
This section also applies to a proposal to alter or replace a statement.
131LF2Offences
1
If a relevant person (“A”) fails to comply with a requirement imposed on A under section 131E or 131F the F5FCA may certify that fact in writing to the court.
2
If the court is satisfied that A failed without reasonable excuse to comply with the requirement, it may deal with A (and where A is a body corporate, any director or officer) as if A (or as the case may be the director or officer) were in contempt; and “officer”, in relation to a limited liability partnership, means a member of the limited liability partnership.
3
A relevant person (“B”) who, in purported compliance with a requirement imposed on B under section 131E or 131F—
a
provides information which B knows to be false or misleading in a material particular, or
b
recklessly provides information which is false or misleading in a material particular,
is guilty of an offence.
4
A person guilty of an offence under subsection (3) is liable—
a
on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum, or both;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
5
Any person who intentionally obstructs the exercise of any rights conferred by a warrant under section 131FB is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.
6
In relation to any contravention by a person, the F5FCA may not exercise both—
a
its powers under section 131G(2), and
b
its powers under subsection (1).
7
In this section—
“court” means—
- a
the High Court;
- b
in Scotland, the Court of Session;
- a
“relevant person” means—
- a
an authorised person,
- b
a person who has been an authorised person,
- c
a person who is for the purposes of section 165 connected with an authorised person or with a person within paragraph (b).
- a
Pt. 8A inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 8, 26(2)(b)