Part XXVII Offences
Miscellaneous offences
F1397 Misleading statements and practices.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
398 Misleading F2FCA or PRA: residual cases.
(1)
F5(1A)
A requirement falls within this subsection if it is imposed by or under—
(a)
this Act;
(b)
the Alternative Investment Fund Managers Regulations 2013;
F6(ba)
the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701);
(c)
the short selling regulation;
(d)
Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds; F7...
(e)
F10(ea)
any directly applicable EU regulation made under the markets in financial instruments directive;
(eb)
the markets in financial instruments regulation and any directly applicable EU regulation made under it; or
F11(f)
(g)
the market abuse regulation. F15...
F21(j)
the prospectus regulation (as defined by section 103).
(2)
Subsection (1) applies only to a requirement in relation to which no other provision of this Act creates an offence in connection with the giving of information.
(3)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory maximum;
(b)
on conviction on indictment, to a fine.
399 Misleading F22the CMA.
Section 44 of the M1Competition Act 1998 (offences connected with the provision of false or misleading information) applies in relation to any function of F23the Competition and Markets Authority under this Act as if it were a function under Part I of that Act.
Bodies corporate and partnerships
400 Offences by bodies corporate etc.
(1)
If an offence under this Act committed by a body corporate is shown—
(a)
to have been committed with the consent or connivance of an officer, or
(b)
to be attributable to any neglect on his part,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2)
If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.
(3)
If an offence under this Act committed by a partnership is shown—
(a)
to have been committed with the consent or connivance of a partner, or
(b)
to be attributable to any neglect on his part,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(4)
In subsection (3) “partner” includes a person purporting to act as a partner.
(5)
“Officer”, in relation to a body corporate, means—
(a)
a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity; and
(b)
an individual who is a controller of the body.
(6)
If an offence under this Act committed by an unincorporated association (other than a partnership) is shown—
(a)
to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or
(b)
to be attributable to any neglect on the part of such an officer or member,
that officer or member as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.
F24(6A)
References in this section to an offence under this Act include a reference to an offence under Part 7 of the Financial Services Act 2012 (offences relating to financial services).
(7)
Regulations may provide for the application of any provision of this section, with such modifications as the Treasury consider appropriate, to a body corporate or unincorporated association formed or recognised under the law of a territory outside the United Kingdom.
Institution of proceedings
401 Proceedings for offences.
F25(1)
In this section “offence” means—
(a)
an offence under this Act,
(b)
an offence under subordinate legislation made under this Act, or
(c)
an offence under Part 7 of the Financial Services Act 2012 (offences relating to financial services).
(2)
Proceedings for an offence may be instituted in England and Wales only—
(a)
by the F26appropriate regulator or the Secretary of State; or
(b)
by or with the consent of the Director of Public Prosecutions.
(3)
Proceedings for an offence may be instituted in Northern Ireland only—
(a)
by the F27appropriate regulator or the Secretary of State; or
(b)
by or with the consent of the Director of Public Prosecutions for Northern Ireland.
F28(3A)
For the purposes of subsections (2)(a) and (3)(a), the PRA is the “appropriate regulator” in respect of each of the following offences—
(a)
an offence under section 55P(10) where the contravention is of a requirement imposed by the PRA;
(b)
an offence under section 56(4) where the prohibition order is made by the PRA;
(c)
an offence under section 177(3) where the investigation is being, or is likely to be, conducted on behalf of the PRA;
(d)
an offence under section 177(4) where the requirement is imposed by the PRA;
(e)
an offence under section 177(6) where the warrant is issued as a result of information on oath given by the PRA or a person appointed by the PRA to conduct an investigation on its behalf;
(f)
an offence under section 191F(1) where the notice should have been given to the PRA;
(g)
an offence under any of section 191F(2) to F29(4) and (5) to (7) where the notice, approval or information was given to or by the PRA;
(h)
an offence under section 366(3), unless the activity of effecting or carrying out long-term contracts of insurance is not to any extent a PRA-regulated activity;
(i)
an offence under section 398(1) where the information was given to the PRA.
F30(3AB)
For the purposes of subsections (2)(a) and (3)(a), the Bank of England is the “appropriate regulator” in respect of an offence under section 191F(4A).
(3B)
For the purposes of subsections (2)(a) and (3)(a), the FCA is the “appropriate regulator” in respect of any other offence.
F31(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
In exercising its power to institute proceedings for an offence, the F32appropriate regulator must comply with any conditions or restrictions imposed in writing by the Treasury.
(6)
Conditions or restrictions may be imposed under subsection (5) in relation to—
(a)
proceedings generally; or
(b)
such proceedings, or categories of proceedings, as the Treasury may direct.
402 Power of F33FCA to institute proceedings for certain other offences.
(1)
Except in Scotland, the F34FCA may institute proceedings for an offence under—
(a)
Part V of the M2Criminal Justice Act 1993 (insider dealing); F35. . .
(b)
prescribed regulations relating to money laundering. F36 or
(c)
Schedule 7 to the Counter-Terrorism Act 2008 (terrorist financing or money laundering).
(2)
In exercising its power to institute proceedings for any such offence, the F37FCA must comply with any conditions or restrictions imposed in writing by the Treasury.
(3)
Conditions or restrictions may be imposed under subsection (2) in relation to—
(a)
proceedings generally; or
(b)
such proceedings, or categories of proceedings, as the Treasury may direct.
403 Jurisdiction and procedure in respect of offences.
(1)
A fine imposed on an unincorporated association on its conviction of an offence is to be paid out of the funds of the association.
(2)
Proceedings for an offence alleged to have been committed by an unincorporated association must be brought in the name of the association (and not in that of any of its members).
(3)
Rules of court relating to the service of documents are to have effect as if the association were a body corporate.
(4)
In proceedings for an offence brought against an unincorporated association—
(a)
section 33 of the M3Criminal Justice Act 1925 and Schedule 3 to the M4Magistrates’ Courts Act 1980 (procedure) apply as they do in relation to a body corporate;
(b)
section 70 of the M5Criminal Procedure (Scotland) Act 1995 (procedure) applies as if the association were a body corporate;
(c)
section 18 of the M6Criminal Justice (Northern Ireland) Act 1945 and Schedule 4 to the M7Magistrates’ Courts (Northern Ireland) Order 1981 (procedure) apply as they do in relation to a body corporate.
(5)
Summary proceedings for an offence may be taken—
(a)
against a body corporate or unincorporated association at any place at which it has a place of business;
(b)
against an individual at any place where he is for the time being.
(6)
Subsection (5) does not affect any jurisdiction exercisable apart from this section.
(7)
“Offence” means an offence under this Act F38or an offence under Part 7 of the Financial Services Act 2012 (offences relating to financial services).