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Financial Services and Markets Act 2000, Part XI is up to date with all changes known to be in force on or before 22 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Part XIU.K. Information Gathering and Investigations

Modifications etc. (not altering text)

C1Pt. 11 modified (1.12.2001) by S.I. 2001/2657, arts. 1(1), 18(2) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

Pt. 11 modified (1.12.2001) by S.I. 2001/3083, arts. 1(2), 18(2)(4); S.I. 2001/3538, art. 2(1)

Pt. 11 extended (with modifications) (1.12.2001) by S.I. 2001/3646, arts. 1(1), 6-9

C3Pt. 11 applied (with modifications) (11.2.2010) by The Cross-Border Payments in Euro Regulations 2010 (S.I. 2010/89), reg. 19, Sch. para. 2

C7Pt. 11 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(5)

C9Pt. 11 applied (with modifications) (12.12.2014) by The Immigration Act 2014 (Bank Accounts) Regulations 2014 (S.I. 2014/3085), regs. 1, 14

C12Pt. 11 applied (with modifications) (18.9.2016) by The Payment Accounts Regulations 2015 (S.I. 2015/2038), reg. 1(2)(b), Sch. 7 para. 2

C13Pt. 11 applied (with modifications) (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 1 para. 19(1) (with reg. 7)

C14Pt. 11 applied (with modifications) (3.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Data Reporting Services Regulations 2017 (S.I. 2017/699), regs. 1(2)(a)(b), 33

C16Pt. 11 applied (with modifications) (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 6 para. 4 (with reg. 3) (as amended by S.I. 2018/1201, reg. 1(3), Sch. 2 para. 72(3) (with reg. 4, Sch. 3 Pt. 2) (as amended by S.I. 2020/56, regs. 1, 8))

C19Pt. 11 modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 82(13)

C20Pt. 11 applied (with modifications) (1.1.2019) by The Securitisation Regulations 2018 (S.I. 2018/1288), reg. 1, Sch. 1 para. 3 (with Sch. 1 paras. 13, 14)

Powers to gather informationU.K.

165 [F1Regulators] power to require information [F2: authorised persons etc].U.K.

(1)[F3Either regulator] may, by notice in writing given to an authorised person, require him—

(a)to provide specified information or information of a specified description; or

(b)to produce specified documents or documents of a specified description.

(2)The information or documents must be provided or produced—

(a)before the end of such reasonable period as may be specified; and

(b)at such place as may be specified.

(3)An officer who has written authorisation from the [F4regulator] to do so may require an authorised person without delay—

(a)to provide the officer with specified information or information of a specified description; or

(b)to produce to him specified documents or documents of a specified description.

(4)This section applies only to

[F5(a)]information and documents reasonably required in connection with the exercise by [F6either regulator] of functions conferred on it by or under this Act [F7, and

(b)in relation to the exercise by the PRA of the powers conferred by subsections (1) and (3), information and documents reasonably required by the Bank of England in connection with the exercise by the Bank of its functions in pursuance of its financial stability objective.]

(5)[F8The regulator in question] may require any information provided under this section to be provided in such form as it may reasonably require.

(6)[F9The regulator in question] may require—

(a)any information provided, whether in a document or otherwise, to be verified in such manner, or

(b)any document produced to be authenticated in such manner,

as it may reasonably require.

(7)The powers conferred by subsections (1) and (3) may also be [F10exercised—

(a)by either regulator, to impose requirements on a person who is connected with an authorised person;

(b)by the FCA, to impose requirements on an operator, trustee or depositary of a scheme recognised under section F11... 272 who is not an authorised person;

(c)by the FCA, to impose requirements on a recognised investment exchange;

(d)by the FCA, to impose requirements on a person who is connected with a recognised investment exchange.]

[F12(e)by either regulator, to impose requirements on a person who provides any service to an insurance undertaking, reinsurance undertaking or third-country insurance undertaking.]

(8)“Authorised person” includes a person who was at any time an authorised person but who has ceased to be an authorised person.

[F13(8A)“Financial stability objective” means the objective set out in section 2A of the Bank of England Act 1998.]

(9)“Officer” means an officer of [F14the regulator exercising the power] and includes a member of [F15that regulator's] staff or an agent of [F16that regulator].

(10)“Specified” means—

(a)in subsections (1) and (2), specified in the notice; and

(b)in subsection (3), specified in the authorisation.

(11)For the purposes of this section, a person is connected with [F17another person] (“A”) if he is or has at any relevant time been—

(a)a member of A’s group;

(b)a controller of A;

(c)any other member of a partnership of which A is a member; or

(d)in relation to A, a person mentioned in Part I of Schedule 15 [F18(reading references in that Part to the authorised person as references to A)].

Textual Amendments

F1Word in s. 165 heading substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 1(9) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F2S. 165: words in heading inserted (8.6.2010) by Financial Services Act (c. 28), ss. 24(1), 26(2)(d)(e), {Sch. 2 para. 15}

F3Words in s. 165(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 1(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F5S. 165(4)(a): words in s. 165(4) renumbered as s. 165(4)(a) (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 36(2)(a) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F6Words in s. 165(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 1(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F8Words in s. 165(5) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 1(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F9Words in s. 165(6) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 1(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C21S. 165 amended (1.12.2001) by S.I. 2001/2657, arts. 1(1), 15(1) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 165 amended (temp. from 11.8.2001 to 1.12.2001) by S.I. 2001/2659, arts. 1(2), 2; S.I. 2001/3538, art. 2(1)

S. 165 amended (1.12.2001) by S.I. 2001/3083, arts. 1(2), 15(1); S.I. 2001/3538, art. 2(1)

C23S. 165 amended (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(3)

C24S. 165 applied (with modifications) (6.3.2008) by The Regulated Covered Bonds Regulations 2008 (S.I. 2008/346), reg. 46, Sch. para. 3

C27S. 165 modified in part (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 50(1)

C28S. 165 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 12(9)

C29S. 165 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(a) (with Pt. 4)

C32S. 165(1)(2) extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 2(1)(3)(a)

C33S. 165(1)-(6) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C35S. 165(5)(6) extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 2(3)(b)(c)

C38S. 165(9)(10) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

[F19165A [F20PRA's] power to require information: financial stabilityU.K.

(1)The [F21PRA] may, by notice in writing given to a person to whom this section applies, require the person—

(a)to provide specified information or information of a specified description; or

(b)to produce specified documents or documents of a specified description.

(2)This section applies to—

(a)a person who has a legal or beneficial interest in any of the assets of a relevant investment fund;

(b)a person who is responsible for the management of a relevant investment fund;

(c)a person (a “service provider”) who provides any service to an authorised person;

(d)a person prescribed by an order made by the Treasury or any person of a description prescribed by such an order (and see also section 165C);

(e)a person who is connected with a person to whom this section applies as a result of any of the above paragraphs.

(3)This section applies only to

[F22(a)]information and documents that the [F21PRA] considers are, or might be, relevant to the stability of one or more aspects of the UK financial system [F23, and

(b)information and documents reasonably required by the Bank of England in connection with the exercise by the Bank of its functions in pursuance of its financial stability objective.]

(4)A notice may be given to a service provider, or to a person who is connected with a service provider, only if the [F21PRA] considers that—

(a)the service or the way in which it (or any part of it) is provided, or

(b)any failure to provide the service (or any part of it),

poses, or would be likely to pose, a serious threat to the stability of the UK financial system.

(5)Information or documents required under this section must be provided or produced—

(a)before the end of such reasonable period as may be specified; and

(b)at such place as may be specified.

(6)The [F21PRA] may require any information provided under this section to be provided in such form as it may reasonably require.

(7)The [F21PRA] may require—

(a)any information provided, whether in a document or otherwise, to be verified in such manner as it may reasonably require; or

(b)any document produced to be authenticated in such manner as it may reasonably require.

[F24(7A)“Financial stability objective” means the objective set out in section 2A of the Bank of England Act 1998.]

(8)In this section—

  • “management” includes any of the activities listed in Annex II to the UCITS directive;

  • “relevant investment fund” means an investment fund whose assets consist of or include financial instruments which—

    (a)

    are traded in the United Kingdom; or

    (b)

    were issued by a body incorporated in the United Kingdom;

  • “service” includes facility;

  • “specified” means specified in the notice.

(9)For the purposes of the definition of “relevant investment fund”—

(a)arrangements may constitute an investment fund even if there is only one person participating in the arrangements; and

(b)the reference to financial instruments has the meaning given by Article [F254.1(15)] of the markets in financial instruments directive.

(10)For the purposes of this section a person is connected with another person (“A”) if the person is or has at any relevant time been—

(a)a member of A's group;

(b)a controller of A;

(c)any other member of a partnership of which A is a member; or

(d)in relation to A, a person mentioned in Part 1 of Schedule 15 (reading references in that Part to the authorised person as references to A).

Textual Amendments

F19S. 165A-165C inserted (8.6.2010) by Financial Services Act (c. 28), {ss. 18(2)}, 26(2)

F20Word in s. 165A heading substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 2(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F22S. 165(3)(a): words in s. 165A(3) renumbered as s. 165A(3)(a) (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 37(2)(a) (with Sch. 3); S.I. 2017/43, reg. 2(g)

165BSafeguards etc in relation to exercise of power under section 165AU.K.

(1)If the [F26PRA] proposes to impose a requirement on a person under section 165A, it must give the person a notice in writing warning the person that the [F26PRA] is proposing to impose the requirement.

(2)The notice under subsection (1) must—

(a)give the [F27PRA's] reasons for proposing to impose the requirement; and

(b)specify a reasonable period within which the person may make representations to the [F26PRA].

(3)The [F26PRA] must then decide, within a reasonable period, whether to impose the requirement.

(4)Subsections (1) to (3) do not apply in any case where the [F26PRA] is satisfied that it is necessary for the information or documents to be provided or produced without delay.

(5)If the [F26PRA] imposes a requirement on a person under section 165A, the notice under that section must give the [F27PRA's] reasons for imposing the requirement.

(6)The [F26PRA] must prepare a statement of its policy with respect to the exercise of the power conferred by section 165A.

(7)The statement requires the approval of the Treasury.

(8)If the Treasury approve the statement, the [F26PRA] must publish it.

(9)The power conferred by section 165A may not be exercised before the statement has been published.

Textual Amendments

F19S. 165A-165C inserted (8.6.2010) by Financial Services Act (c. 28), {ss. 18(2)}, 26(2)

165COrders under section 165A(2)(d)U.K.

[F28(1)The Treasury may make an order under section 165A(2)(d) only if either or both of the following conditions is met in relation to the provision made by the order.

(1A)Condition A is that the Treasury consider that—

(a)the activities carried on by the prescribed person or persons of the prescribed description, or the way in which those activities (or any part of them) are carried on, or

(b)any failure to carry on those activities (or any part of them),

pose, or would be likely to pose, a serious threat to the stability of the UK financial system.

(1B)Condition B is that the provision implements all or part of a recommendation made by the Financial Policy Committee of the Bank of England under section 9P of the Bank of England Act 1998.]

(2)Subject as follows, an order under section 165A(2)(d) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

(3)Subsection (2) does not apply in any case where the Treasury are satisfied that it is necessary to make an order under section 165A(2)(d) without laying a draft for approval.

(4)In that case, the order—

(a)must be laid before Parliament after being made; and

(b)ceases to have effect at the end of the relevant period unless before the end of that period it is approved by a resolution of each House of Parliament.

(5)If an order ceases to have effect as a result of subsection (4)(b) that does not affect—

(a)anything done under it; or

(b)the power to make a new one.

(6)“Relevant period” means a period of 28 days beginning with the day on which the order is made.

(7)In calculating the relevant period no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8)If a statutory instrument containing an order under section 165A(2)(d) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the Standing Orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.]

Textual Amendments

F19S. 165A-165C inserted (8.6.2010) by Financial Services Act (c. 28), {ss. 18(2)}, 26(2)

F28S. 165C(1)-(1B) substituted for s. 165C(1) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 4 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

[F29166 Reports by skilled persons.U.K.

(1)This section applies where either regulator has required or could require a person to whom subsection (2) applies (“the person concerned”) to provide information or produce documents with respect to any matter (“the matter concerned”).

(2)This subsection applies to—

(a)an authorised person (“A”),

(b)any other member of A's group,

(c)a partnership of which A is a member, or

(d)a person who has at any relevant time been a person falling within paragraph (a), (b) or (c),

who is, or was at the relevant time, carrying on a business.

(3)The regulator mentioned in subsection (1) may either—

(a)by notice in writing given to the person concerned, require the person concerned to provide the regulator with a report on the matter concerned, or

(b)itself appoint a person to provide the regulator with a report on the matter concerned.

(4)When acting under subsection (3)(a), the regulator may require the report to be in such form as may be specified in the notice.

(5)The regulator must give notice of an appointment under subsection (3)(b) to the person concerned.

(6)The person appointed to make a report—

(a)must be a person appearing to the regulator to have the skills necessary to make a report on the matter concerned, and

(b)where the appointment is to be made by the person concerned, must be a person nominated or approved by the regulator.

(7)It is the duty of—

(a)the person concerned, and

(b)any person who is providing (or who has at any time provided) services to the person concerned in relation to the matter concerned,

to give the person appointed to prepare a report all such assistance as the appointed person may reasonably require.

(8)The obligation imposed by subsection (7) is enforceable, on the application of the regulator in question, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.

(9)A regulator may make rules providing for expenses incurred by it in relation to an appointment under subsection (3)(b) to be payable as a fee by the person concerned.

(10)The powers conferred by this section may also be exercised by the FCA in relation to a person to whom subsection (11) applies, (and references to the person concerned are to be read accordingly).

(11)This subsection applies to—

(a)a recognised investment exchange (“A”),

(b)any other member of A's group,

(c)a partnership of which A is a member, or

(d)a person who has at any time been a person falling within paragraph (a), (b) or (c),

who is, or was at the relevant time, carrying on a business.]

Textual Amendments

F29S. 166 substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 5 (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C40S. 166 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(b) (with Pt. 4)

C43S. 166(1)-(8) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

[F30166AAppointment of skilled person to collect and update informationU.K.

(1)This section applies if either regulator considers that an authorised person has contravened a requirement in rules made by that regulator to collect, and keep up to date, information of a description specified in the rules.

(2)The regulator may either—

(a)require the authorised person to appoint a skilled person to collect or update the information, or

(b)itself appoint a skilled person to do so.

(3)References in this section to a skilled person are to a person—

(a)appearing to the regulator to have the skills necessary to collect or update the information in question, and

(b)where the appointment is to be made by the authorised person, nominated or approved by the regulator.

(4)The regulator must give notice of an appointment under subsection (2)(b) to the authorised person.

(5)The skilled person may require any person to provide all such assistance as the skilled person may reasonably require to collect or update the information in question.

(6)A requirement imposed under subsection (5) is enforceable, on the application of the regulator in question, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.

(7)A contractual or other requirement imposed on a person (“P”) to keep any information in confidence does not apply if—

(a)the information is or may be relevant to anything required to be done as a result of this section,

(b)an authorised person or a skilled person requests or requires P to provide the information for the purpose of securing that those things are done, and

(c)the regulator in question has approved the making of the request or the imposition of the requirement before it is made or imposed.

(8)An authorised person may provide information (whether received under subsection (7) or otherwise) that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done as a result of this section.

(9)A regulator may make rules providing for expenses incurred by it in relation to an appointment under subsection (2)(b) to be payable as a fee by the authorised person.

(10)In this section “authorised person”, in relation to the PRA, means PRA-authorised person.]

Textual Amendments

F30S. 166A inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 6 (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C44S. 166A applied (with modifications) by S.I. 2008/346, Sch. para. 4A (as inserted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 134(g)(ii))

Appointment of investigatorsU.K.

167 Appointment of persons to carry out general investigations.U.K.

(1)If it appears to [F31an investigating authority] that there is good reason for doing so, the investigating authority may appoint one or more competent persons to conduct an investigation on its behalf into—

(a)the nature, conduct or state of the business of [F32a recognised investment exchange or] an authorised person or of an appointed representative;

(b)a particular aspect of that business; or

(c)the ownership or control of [F33a recognised investment exchange or] an authorised person.

(2)If a person appointed under subsection (1) thinks it necessary for the purposes of his investigation, he may also investigate the business of a person who is or has at any relevant time been—

(a)a member of the group of which the person under investigation (“A”) is part; F34...

(b)a partnership of which A is a member [F35; or]

[F36(c)where A is an insurance undertaking, reinsurance undertaking or third-country insurance undertaking, a person who provides services to A.]

(3)If a person appointed under subsection (1) decides to investigate the business of any person under subsection (2) he must give that person written notice of his decision.

[F37(3A)If a person appointed under subsection (1) decides under subsection (2)(c) to investigate a person located in an EEA State other than the United Kingdom the person appointed must inform the supervisory authority of that EEA State prior to conducting an on-site inspection.]

(4)The power conferred by this section may be exercised in relation to a former authorised person (or appointed representative) but only in relation to—

(a)business carried on at any time when he was an authorised person (or appointed representative); or

(b)the ownership or control of a former authorised person at any time when he was an authorised person.

(5)“Business” includes any part of a business even if it does not consist of carrying on regulated activities.

[F38(5A)“Investigating authority” means—

(a)in relation to a recognised investment exchange, the Secretary of State or the FCA;

(b)in relation to an authorised person or former authorised person, the FCA or the PRA;

(c)in relation to an appointed representative or former appointed representative, the FCA or the PRA.]

[F39(6)References in subsection (1) to a recognised investment exchange do not include references to an overseas investment exchange (as defined by section 313(1)).]

Textual Amendments

F34Word in s. 167(2)(a) omitted (1.1.2016) by virtue of The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 8(2)(a)

Modifications etc. (not altering text)

C45S. 167 modified (1.12.2001) by S.I. 2001/2657, arts. 1(1), 17 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 167 modified (1.12.2001) by S.I. 2001/3083, arts. 1(2), 17; S.I. 2001/3538, art. 2(1)

C46S. 167 amended (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(3)

C49S. 167 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 12(9)

C50S. 167 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(c) (with Pt. 4)

C52S. 167(1) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

168 Appointment of persons to carry out investigations in particular cases.U.K.

(1)Subsection (3) applies if it appears to an investigating authority that there are circumstances suggesting that—

F40(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a person may be guilty of an offence under section [F41122F,] 177, [F42191F], 346 or 398(1) or under Schedule 4.

(2)Subsection (3) also applies if it appears to an investigating authority that there are circumstances suggesting that—

(a)an offence under section 24(1) F43... [F44or under Part 7 of the Financial Services Act 2012] or under Part V of the M1Criminal Justice Act 1993 may have been committed;

(b)there may have been a breach of the general prohibition;

[F45(ba)an authorised person may have contravened section 20 in relation to a credit-related regulated activity;]

(c)there may have been a contravention of section 21 or 238; or

[F46(d)a person has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation.]

(3)The investigating authority may appoint one or more competent persons to conduct an investigation on its behalf.

(4)Subsection (5) applies if it appears to [F47an investigating authority] that there are circumstances suggesting that—

(a)a person may have contravened section 20;

(b)a person may be guilty of an offence under prescribed regulations relating to money laundering;

[F48(ba)a person may be guilty of an offence under Schedule 7 to the Counter-Terrorism Act 2008 (terrorist financing or money laundering);]

(c)[F49a person] may have contravened a rule made by the [F50investigating authority];

[F51(ca)a recognised investment exchange may have contravened the recognition requirements (within the meaning of Part 18);]

(d)an individual may not be a fit and proper person to perform functions in relation to a regulated activity carried on by an authorised or exempt person;

(e)an individual may have performed or agreed to perform a function in breach of a prohibition order;

(f)[F52a person] may have failed to comply with section 56(6);

(g)an authorised person may have failed to comply with section 59(1) or (2);

(h)a person in relation to whom [F53a regulator] has given its approval under section 59 may not be a fit and proper person to perform the function to which that approval relates; F54. . .

[F55(ha)a person may have performed a controlled function without approval for the purposes of section 63A;]

(i)a person may be guilty of misconduct for the purposes of section 66 [F56; F57...

(j)a person may have contravened any provision made by or under this Act for the purpose of implementing the markets in financial instruments directive F58...]

[F59(ja)a person may have contravened—

(i)any provision made by or under this Act for the purpose of implementing the alternative investment fund managers directive; F60...

(ii)any provision made by the Alternative Investment Fund Managers Regulations 2013; F61...

[F62(iii)any provision made by or under this Act for the purpose of implementing the UCITS Directive; or

(iv)any provision made by the Undertakings for Collective Investment in Transferable Securities Regulations 2011; F63....]]

[F64(jb)a person may have contravened—

(i)any provision made by or under this Act for the purposes of the market abuse regulation; or

(ii)a requirement imposed on that person under sections 122A to 122C, 122G to 122I, 123A or 123B;

(jc)a person may have been knowingly concerned in the contravention of—

(i)a provision of the market abuse regulation other than Article 14 (prohibition of insider dealing) or 15 (prohibition of market manipulation) of that regulation; or

(ii)a directly applicable EU regulation made under the market abuse regulation; or]

[F65(k)a person may have contravened a qualifying EU provision that is specified, or of a description specified, for the purposes of this subsection by the Treasury by order.]

(5)The [F66investigating authority] may appoint one or more competent persons to conduct an investigation on its behalf.

[F67(6)Investigating authority” means—

(a)in subsections (1) to (3), the FCA, the PRA or the Secretary of State;

(b)in subsections (4) and (5), the FCA or the PRA.]

Textual Amendments

F40S. 168(1)(a) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(2)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F42Word in s. 168(1)(b) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(2)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F44Words in s. 168(2)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(3)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F45S. 168(2)(ba) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(3)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F47Words in s. 168(4) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F48S. 168(4)(ba) inserted (27.11.2008) by Counter-Terrorism Act 2008 (c. 28), ss. 62, 100(2), Sch. 7 para. 33(3) (with s. 101(2), Sch. 7 para. 43)

F49Words in s. 168(4)(c) substituted (8.4.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(1), Sch. 2 para. 16(2)

F50Words in s. 168(4)(c) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F51S. 168(4)(ca) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F52Words in s. 168(4)(f) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(d) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F53Words in s. 168(4)(h) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(e) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F54Word in s. 168(4) omitted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 8(a)

F56S. 168(4)(j) and preceding word inserted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 8(b)

F58Words in s. 168(4)(j) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(f) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F65S. 168(4)(k) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(4)(g) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F66Words in s. 168(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F67S. 168(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 8(6) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C53S. 168 amended (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(3)

C55S. 168 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 50(2)

C56S. 168 modified (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(3) (with Pt. 4)

C57S. 168 applied (with modifications) (E.W.S.) (29.11.2018 for specified purposes) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 57(2)(3)

C59S. 168(3)(5) applied (1.12.2001) by S.I. 2001/2657, arts. 1(1), 18(1)(3) (which was revoked 8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 168(3)(5) applied (1.12.2001) by S.I. 2001/3083, arts. 1(2), 18(1)(3); S.I. 2001/3538, art. 2(1)

C61S. 168(4)-(6) applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(d) (with Pt. 4)

C62S. 168(4)(c) amended (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(5)

Commencement Information

I1S. 168 wholly in force at 3.9.2001; s. 168 not in force at Royal Assent see s. 431(2); s. 168(4)(b) in force for certain purposes at 25.2.2001 by S.I. 2001/516, art. 2(b), Sch. Pt. 2; s. 168 in force in so far as not already in force at 3.9.2001 by S.I. 2001/2632, art. 2(2), Sch. Pt. 2

Marginal Citations

Assistance to overseas regulatorsU.K.

169 Investigations etc. in support of overseas regulator.U.K.

(1)At the request of an overseas regulator, [F68a regulator] may—

(a)exercise the power conferred by section 165; or

(b)appoint one or more competent persons to investigate any matter.

(2)An investigator has the same powers as an investigator appointed under section 168(3) (as a result of subsection (1) of that section).

[F69(2A)But where the investigator is—

(a)appointed by the FCA, and

(b)the appointment is in response to a request to the FCA to investigate a possible contravention by a person of Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation,

the investigator has the same powers as an investigator appointed under section 168(3) (as a result of subsection (2) of that section).]

(3)If the request has been made by a competent authority in pursuance of any [F70EU] obligation the [F71regulator] must, in deciding whether or not to exercise its investigative power, consider whether its exercise is necessary to comply with any such obligation.

(4)In deciding whether or not to exercise its investigative power, the [F72regulator] may take into account in particular—

(a)whether in the country or territory of the overseas regulator concerned, corresponding assistance would be given to a United Kingdom regulatory authority;

(b)whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom;

(c)the seriousness of the case and its importance to persons in the United Kingdom;

(d)whether it is otherwise appropriate in the public interest to give the assistance sought.

(5)The [F73regulator] may decide that it will not exercise its investigative power unless the overseas regulator undertakes to make such contribution towards the cost of its exercise as the [F73regulator] considers appropriate.

(6)Subsections (4) and (5) do not apply if the [F74regulator] considers that the exercise of its investigative power is necessary to comply with [F70an EU] obligation.

(7)If [F75a regulator] has appointed an investigator in response to a request from an overseas regulator, it may direct the investigator to permit a representative of that regulator to attend, and take part in, any interview conducted for the purposes of the investigation.

(8)A direction under subsection (7) is not to be given unless the [F76regulator] is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to safeguards equivalent to those contained in Part XXIII.

(9)[F77Each regulator] must prepare a statement of its policy with respect to the conduct of interviews in relation to which a direction under subsection (7) has been given.

(10)The statement requires the approval of the Treasury.

(11)If the Treasury approve the statement, the [F78regulator] must publish it.

(12)No direction may be given under subsection (7) before the statement has been published.

(13)“Overseas regulator” has the same meaning as in section 195.

(14)“Investigative power” means one of the powers mentioned in subsection (1).

(15)“Investigator” means a person appointed under subsection (1)(b).

Textual Amendments

F68Words in s. 169(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(2) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F70Words in s. 169(3)(6) substituted (22.4.2011 with application in accordance with art. 3 of the amending S.I.) by virtue of The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), art. 6(1)(3)(4)

F71Word in s. 169(3) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F72Word in s. 169(4) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F73Word in s. 169(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(4) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F74Word in s. 169(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F75Word in s. 169(7) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(6) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F76Word in s. 169(8) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(7) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F77Words in s. 169(9) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(8) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

F78Word in s. 169(11) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 9(9) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C65S. 169 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(e) (with Pt. 4)

Commencement Information

I2S. 169 wholly in force at 3.9.2001; s. 169 not in force at Royal Assent see s. 431(2); s. 169 in force for specified purposes at 18.6.2001 by S.I. 2001/1820, art. 2, Sch.; s. 169 in force in so far as not already in force at 3.9.2001 by S.I. 2001/2632, art. 2(2), Sch. Pt. 2

[F79169ASupport of overseas regulator with respect to financial stabilityU.K.

(1)At the request of an overseas regulator, the [F80PRA] may exercise a corresponding section 165A power.

(2)An “overseas regulator” means an authority in a country or territory outside the United Kingdom which exercises functions with respect to the stability of the financial system operating in that country or territory.

(3)A “corresponding section 165A power” means a power corresponding to the one conferred by section 165A, but reading references in that section to the stability of the UK financial system as references to the stability of the financial system operating in the country or territory of the overseas regulator.

(4)The following provisions apply in relation to the exercise of the corresponding section 165A power—

(a)section 165B(1) to (5); and

(b)section 169(3), (4)(a) and (d), (5) and (6).

(5)In this section “the financial system” includes—

(a)financial markets and exchanges;

(b)activities that would be regulated activities if carried on in the United Kingdom; and

(c)other activities connected with financial markets and exchanges.]

Textual Amendments

F79S. 169A inserted (8.6.2010) by Financial Services Act (c. 28), {ss. 18(3)}, 26(2)

F80Word in s. 169A(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 10 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Conduct of investigationsU.K.

170 Investigations: general.U.K.

(1)This section applies if an investigating authority appoints one or more competent persons (“investigators”) under section 167 or 168(3) or (5) to conduct an investigation on its behalf.

(2)The investigating authority must give written notice of the appointment of an investigator to the person who is the subject of the investigation (“the person under investigation”).

(3)Subsections (2) and (9) do not apply if —

(a)the investigator is appointed as a result of section 168(1) or (4) and the investigating authority believes that the notice required by subsection (2) or (9) would be likely to result in the investigation being frustrated; or

(b)the investigator is appointed as a result of subsection (2) of section 168.

(4)A notice under subsection (2) must—

(a)specify the provisions under which, and as a result of which, the investigator was appointed; and

(b)state the reason for his appointment.

(5)Nothing prevents the investigating authority from appointing a person who is a member of its staff as an investigator.

(6)An investigator must make a report of his investigation to the investigating authority.

(7)The investigating authority may, by a direction to an investigator, control—

(a)the scope of the investigation;

(b)the period during which the investigation is to be conducted;

(c)the conduct of the investigation; and

(d)the reporting of the investigation.

(8)A direction may, in particular—

(a)confine the investigation to particular matters;

(b)extend the investigation to additional matters;

(c)require the investigator to discontinue the investigation or to take only such steps as are specified in the direction;

(d)require the investigator to make such interim reports as are so specified.

(9)If there is a change in the scope or conduct of the investigation and, in the opinion of the investigating authority, the person subject to investigation is likely to be significantly prejudiced by not being made aware of it, that person must be given written notice of the change.

(10)“Investigating authority”, in relation to an investigator, means—

[F81(a)the FCA, if the FCA appointed the investigator;

(aa)the PRA, if the PRA appointed the investigator;

(b)the Secretary of State, if the Secretary of State appointed the investigator.]

Textual Amendments

F81S. 170(10)(a)-(b) substituted for s. 170(10)(a)(b) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 11 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C67S. 170 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(f) (with Pt. 4)

C68S. 170(1)(2) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C69S. 170(4)-(8) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C70S. 170(5)-(9) applied (1.12.2001 for E.W.S. and 1.11.2004 for N.I.) by S.I. 2001/1228, regs. 1(2)(c), 30(4) (with 1(2)(3)); S.I. 2001/3538, art. 2(1); S.R. 2004/335, regs. 1(1)(b), 30(4) (with reg. 1(2))

171 Powers of persons appointed under section 167.U.K.

(1)An investigator may require the person who is the subject of the investigation (“the person under investigation”) or any person connected with the person under investigation—

(a)to attend before the investigator at a specified time and place and answer questions; or

(b)otherwise to provide such information as the investigator may require.

(2)An investigator may also require any person to produce at a specified time and place any specified documents or documents of a specified description.

(3)A requirement under subsection (1) or (2) may be imposed only so far as the investigator concerned reasonably considers the question, provision of information or production of the document to be relevant to the purposes of the investigation.

[F82(3A)Where the investigation relates to a recognised investment exchange, an investigator has the additional powers conferred by sections 172 and 173 (and for this purpose references in those sections to an investigator are to be read accordingly).]

(4)For the purposes of this section and section 172, a person is connected with the person under investigation (“A”) if he is or has at any relevant time been—

(a)a member of A’s group;

(b)a controller of A;

(c)a partnership of which A is a member; or

(d)in relation to A, a person mentioned in Part I or II of Schedule 15.

(5)“Investigator” means a person conducting an investigation under section 167.

(6)“Specified” means specified in a notice in writing.

[F83(7)The reference in subsection (3A) to a recognised investment exchange does not include a reference to an overseas investment exchange (as defined by section 313(1)).]

Textual Amendments

Modifications etc. (not altering text)

C72S. 171 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(g) (with Pt. 4)

C73S. 171(1)-(3) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C74S. 171(5)(6) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

172 Additional power of persons appointed as a result of section 168(1) or (4).U.K.

(1)An investigator has the powers conferred by section 171.

(2)An investigator may also require a person who is neither the subject of the investigation (“the person under investigation”) nor a person connected with the person under investigation—

(a)to attend before the investigator at a specified time and place and answer questions; or

(b)otherwise to provide such information as the investigator may require for the purposes of the investigation.

(3)A requirement may only be imposed under subsection (2) if the investigator is satisfied that the requirement is necessary or expedient for the purposes of the investigation.

(4)“Investigator” means a person appointed as a result of subsection (1) or (4) of section 168.

(5)“Specified” means specified in a notice in writing.

Modifications etc. (not altering text)

C75S. 172 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(h) (with Pt. 4)

173 Powers of persons appointed as a result of section 168(2).U.K.

(1)Subsections (2) to (4) apply if an investigator considers that any person (“A”) is or may be able to give information which is or may be relevant to the investigation.

(2)The investigator may require A—

(a)to attend before him at a specified time and place and answer questions; or

(b)otherwise to provide such information as he may require for the purposes of the investigation.

(3)The investigator may also require A to produce at a specified time and place any specified documents or documents of a specified description which appear to the investigator to relate to any matter relevant to the investigation.

(4)The investigator may also otherwise require A to give him all assistance in connection with the investigation which A is reasonably able to give.

(5)“Investigator” means a person appointed under subsection (3) of section 168 (as a result of subsection (2) of that section).

Modifications etc. (not altering text)

C76S. 173 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(i) (with Pt. 4)

174 Admissibility of statements made to investigators.U.K.

(1)A statement made to an investigator by a person in compliance with an information requirement is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.

(2)But in criminal proceedings in which that person is charged with an offence to which this subsection applies or in proceedings in relation to action to be taken against that person under section 123 [F84to which this subsection applies]—

(a)no evidence relating to the statement may be adduced, and

(b)no question relating to it may be asked,

by or on behalf of the prosecution or (as the case may be) [F85a regulator], unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

(3)Subsection (2) applies to any offence other than one—

(a)under section 177(4) or 398;

(b)under section 5 of the M2Perjury Act 1911 (false statements made otherwise than on oath);

(c)under section 44(2) of the M3Criminal Law (Consolidation)(Scotland) Act 1995 (false statements made otherwise than on oath); or

(d)under Article 10 of the M4Perjury (Northern Ireland) Order 1979.

[F86(3A)Subsection (2) applies to proceedings in relation to action to be taken under section 123(2) or (3) against a person who may have contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation.]

(4)“Investigator” means a person appointed under section 167 or 168(3) or (5) [F87, or a person appointed under section 169 who has the powers conferred by virtue of subsection (2A) of that section].

(5)“Information requirement” means a requirement imposed by an investigator under section 171, 172, 173 or 175.

Textual Amendments

F85Words in s. 174(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 12 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C77S. 174 applied (1.12.2001 for E.W.S. and 1.11.2004 for N.I) by S.I. 2001/1228, regs. 1(2)(c), 30(5) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1); S.R. 2004/335, regs. 1(1)(b), 30(5) (with reg. 1(2))

S. 174 applied (with modifications) (1.12.2001) by S.I. 2001/3646, arts. 1(1), 2(4), 4(5)

C78S. 174 applied (with modifications) (7.6.2010) by The Credit Rating Agencies Regulations 2010 (S.I. 2010/906), reg. 16(4)

C80S. 174 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(j) (with Pt. 4)

Marginal Citations

175 Information and documents: supplemental provisions.U.K.

(1)If [F88either regulator] or an investigator has power under this Part to require a person to produce a document but it appears that the document is in the possession of a third person, that power may be exercised in relation to the third person.

(2)If a document is produced in response to a requirement imposed under this Part, the person to whom it is produced may—

(a)take copies or extracts from the document; or

(b)require the person producing the document, or any relevant person, to provide an explanation of the document.

[F89(2A)A document so produced may be retained for so long as the person to whom it is produced considers that it is necessary to retain it (rather than copies of it) for the purposes for which the document was requested.

(2B)If the person to whom a document is so produced has reasonable grounds for believing—

(a)that the document may have to be produced for the purposes of any legal proceedings, and

(b)that it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.]

(3)If a person who is required under this Part to produce a document fails to do so, the [F90regulator] or an investigator may require him to state, to the best of his knowledge and belief, where the document is.

(4)A lawyer may be required under this Part to furnish the name and address of his client.

(5)No person may be required under this Part to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless—

(a)he is the person under investigation or a member of that person’s group;

(b)the person to whom the obligation of confidence is owed is the person under investigation or a member of that person’s group;

(c)the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(d)the imposing on him of a requirement with respect to such information or document has been specifically authorised by the investigating authority.

(6)If a person claims a lien on a document, its production under this Part does not affect the lien.

(7)“Relevant person”, in relation to a person who is required to produce a document, means a person who—

(a)has been or is or is proposed to be a director or controller of that person;

(b)has been or is an auditor of that person;

(c)has been or is an actuary, accountant or lawyer appointed or instructed by that person; or

(d)has been or is an employee of that person.

(8)“Investigator” means a person appointed under section 167 or 168(3) or (5).

Textual Amendments

Modifications etc. (not altering text)

C82S. 175 applied (with modifications) (7.6.2010) by The Credit Rating Agencies Regulations 2010 (S.I. 2010/906), reg. 17

C84S. 175 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(k) (with Pt. 4)

C86S. 175(2)-(4)(6) amended (1.12.2001 for E.W.S. and 1.11.2004 for N.I) by S.I. 2001/1228, regs. 1(2)(c), 30(6) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1); S.R. 2004/335, regs. 1(1)(b), 30(6) (with reg. 1(2))

C87S. 175(2)-(6) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C88S. 175(2)(2A)(2B) modified (E.W.S.) (29.11.2018 for specified purposes) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 55(6)

C89S. 175(8) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

176 Entry of premises under warrant.U.K.

(1)A justice of the peace may issue a warrant under this section if satisfied on information on oath given by or on behalf of the Secretary of State, [F91either regulator] or an investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.

(2)The first set of conditions is—

(a)that a person on whom an information requirement has been imposed has failed (wholly or in part) to comply with it; and

(b)that on the premises specified in the warrant—

(i)there are documents which have been required; or

(ii)there is information which has been required.

(3)The second set of conditions is—

(a)that the premises specified in the warrant are premises of an authorised person or an appointed representative;

(b)that there are on the premises documents or information in relation to which an information requirement could be imposed; and

(c)that if such a requirement were to be imposed—

(i)it would not be complied with; or

(ii)the documents or information to which it related would be removed, tampered with or destroyed.

(4)The third set of conditions is—

(a)that an offence mentioned in section 168 for which the maximum sentence on conviction on indictment is two years or more has been (or is being) committed by any person;

(b)that there are on the premises specified in the warrant documents or information relevant to whether that offence has been (or is being) committed;

(c)that an information requirement could be imposed in relation to those documents or information; and

(d)that if such a requirement were to be imposed—

(i)it would not be complied with; or

(ii)the documents or information to which it related would be removed, tampered with or destroyed.

(5)A warrant under this section shall authorise a constable—

(a)to enter the premises specified in the warrant;

(b)to search the premises and take possession of any documents or information appearing to be documents or information of a kind in respect of which a warrant under this section was issued (“the relevant kind”) or to take, in relation to any such documents or information, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c)to take copies of, or extracts from, any documents or information appearing to be of the relevant kind;

(d)to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found; and

(e)to use such force as may be reasonably necessary.

[F92(5A)A warrant under this section may be executed by any constable.

(5B)The warrant may authorise persons to accompany any constable who is executing it.

(5C)The powers in subsection (5) may be exercised by a person authorised by the warrant to accompany a constable; but that person may exercise those powers only in the company of, and under the supervision of, a constable.]

(6)In England and Wales, sections 15(5) to (8) and section [F9316(3) to (12)] of the M5Police and Criminal Evidence Act 1984 (execution of search warrants and safeguards) apply to warrants issued under this section.

(7)In Northern Ireland, Articles 17(5) to (8) and [F9418(3) to (12)] of the M6Police and Criminal Evidence (Northern Ireland) Order 1989 apply to warrants issued under this section.

F95(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In the application of this section to Scotland—

(a)for the references to a justice of the peace substitute references to a justice of the peace or a sheriff; and

(b)for the references to information on oath substitute references to evidence on oath.

(10)“Investigator” means a person appointed under section 167 or 168(3) or (5).

(11)“Information requirement” means a requirement imposed—

(a)by [F96a regulator] under section [F9787C, 87J,] 165 [F98, 165A, 169A] or 175; or

(b)by an investigator under section 171, 172, 173 or 175.

Textual Amendments

F96Words in s. 176(11)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 14(7) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F97Words in s. 176(11)(a) inserted (1.7.2005) by The Prospectus Regulations 2005 (S.I. 2005/1433), reg. 2(1), Sch. 1 para. 12

F98Words in s. 176(11)(a) inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(2)(d)(e), Sch. 2 para. 17

Modifications etc. (not altering text)

C90S. 176 extended (17.8.2001 for certain purposes otherwise 1.12.2001) by 1992 c. 40, s. 62A (as inserted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. I para. 77 (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2(1)

S. 176 modified (17.8.2001 for certain purposes otherwise 1.12.2001) by 1986 c. 53, s. 52B (as substituted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. I para. 151 (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2(1)

S. 176 modified (1.12.2001) by S.I. 1995/1537, reg. 23(4) (as amended (1.12.2001) by S.I. 2001/3649, arts. 1, 509(e))

C94S. 176 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(l) (with Pt. 4)

C95S. 176(1)-(9) applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 30(7) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)

C96S. 176(1)-(8) applied (with modifications) (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 30(7) (with reg. 1(2))

C97S. 176(1)-(3) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C98S. 176(2) extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 13(2)

C99S. 176(5): powers of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, 138(2), Sch. 1 Pt. I para. 69; S.I. 2003/708, art. 2(a)(c)(j)

C100S. 176(5)-(11) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C101S. 176(11) restricted (temp. from 11.8.2001 until 1.12.2001) by S.I. 2001/2659, arts. 1(3), 2(3); S.I. 2001/3538, art. 2(1)

C102S. 176(8) applied (with modifications) (1.4.2003) by 2001 c. 16, ss. 57(1)(o)(4), 138(2); S.I. 2003/708, art. 2(a)

Marginal Citations

[F99176ARetention of documents taken under section 176U.K.

(1)Any document of which possession is taken under section 176 (“a seized document”) may be retained so long as it is necessary to retain it (rather than copies of it) in the circumstances.

(2)A person claiming to be the owner of a seized document may apply to a magistrates' court or (in Scotland) the sheriff for an order for the delivery of the document to the person appearing to the court or sheriff to be the owner.

(3)If on an application under subsection (2) the court or (in Scotland) the sheriff cannot ascertain who is the owner of the seized document the court or sheriff (as the case may be) may make such order as the court or sheriff thinks fit.

(4)An order under subsection (2) or (3) does not affect the right of any person to take legal proceedings against any person in possession of a seized document for the recovery of the document.

(5)Any right to bring proceedings (as described in subsection (4)) may only be exercised within 6 months of the date of the order made under subsection (2) or (3).]

Textual Amendments

Modifications etc. (not altering text)

C105S. 176A applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C106S. 176A applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(m) (with Pt. 4)

OffencesU.K.

177 Offences.U.K.

(1)If a person other than the investigator (“the defaulter”) fails to comply with a requirement imposed on him under this Part the person imposing the requirement may certify that fact in writing to the court.

(2)If the court is satisfied that the defaulter failed without reasonable excuse to comply with the requirement, it may deal with the defaulter (and in the case of a body corporate, any director or [F100other] officer) as if he were in contempt [F101; and “officer”, in relation to a limited liability partnership, means a member of the limited liability partnership.].

(3)A person who knows or suspects that an investigation is being or is likely to be conducted under this Part is guilty of an offence if—

(a)he falsifies, conceals, destroys or otherwise disposes of a document which he knows or suspects is or would be relevant to such an investigation, or

(b)he causes or permits the falsification, concealment, destruction or disposal of such a document,

unless he shows that he had no intention of concealing facts disclosed by the documents from the investigator.

(4)A person who, in purported compliance with a requirement imposed on him under this Part—

(a)provides information which he 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.

(5)A person guilty of an offence under subsection (3) or (4) is liable—

(a)on summary conviction, to imprisonment for a term not exceeding six 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.

(6)Any person who intentionally obstructs the exercise of any rights conferred by a warrant under section 176 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.

[F102(7)In this section—

  • “court” means—

    (a)

    the High Court;

    (b)

    in Scotland, the Court of Session;

  • “investigator appointed by the FCA” means an investigator appointed by the FCA under section 167, 168 or 169;

  • “officer of the FCA” means an officer authorised by the FCA for the purposes of section 165(3).]

Textual Amendments

F101Words in s. 177(2) inserted (6.4.2001 for E.W.S. and 13.9.2004 for N.I.) by S.I. 2001/1090, regs. 1, 9, Sch. 5 para. 21; S.R. 2004/307, reg. 9, Sch. 4 para. 17

Modifications etc. (not altering text)

C108S. 177 applied (1.12.2001 for E.W.S. and 1.11.2004 for N.I) by S.I. 2001/1228, regs. 1(2)(c), 30(6) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1); S.R. 2004/335, regs. 1(1)(b), 30(6) (with reg. 1(2))

S. 177 excluded (1.12.2001) by S.I. 2001/3646, arts. 1(1), 2(5)

S. 177 restricted (1.12.2001) by S.I. 2001/3646, arts. 1(1), 2(7)(a), 4(6)(a), 6(4)(a), 7(4)(a), 8(4)(a), 9(4)(a)

C110S. 177 applied (with modifications) (7.6.2010) by The Credit Rating Agencies Regulations 2010 (S.I. 2010/906), reg. 24

C112S. 177 applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14

C113S. 177 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(n) (with Pt. 4)

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