UK Offence Report

Procedural requirements for carrying on certain listed services

regulation 20(6) of The Investment Services Regulations 1995 (revoked)

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

6 An investment firm which contravenes paragraph (1), (3) or (4) above shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 20(6)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Investment Services Regulations 1995, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (1996-01-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
18 December 1995
In force from
1 January 1996
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

The Regulations give effect to provisions of Council Directive 93/22/EEC on investment services in the securities field (OJ No. L141, 10.5.93, p.27) (“the Investment Services Directive”). They also give effect to provisions of Council Directive 93/6/EEC on the capital adequacy of investment firms and credit institutions (OJ No. L141, 15.3.93, p.1). Most of the Regulations come into force on 1st January 1996. Two of them (one relating to the position of appointed representatives under the Financial Services Act 1986 and the other relating to the position of recognised professional bodies under that Act) come into force of 1st January 1997. Part I of the Regulations defines various words and expressions for the purposes of the Regulations. Schedules 1 and 2 to the Regulations are relevant to the construction of Part I. Part II of the Regulations makes provision for the recognition of certain investment firms authorised in other EEA States for the purposes of providing listed services in the United Kingdom. “Listed services” are the services which are set out in Schedule 1. Subject to compliance with the notification requirements contained in Schedule 3, nothing in certain specified provisions of the Financial Services Act 1986 (c. 60) and the Consumer Credit Act 1974 (c. 39) is to prevent a “European investment firm” (regulation 3) from providing in the United Kingdom, whether by the provision of services or the establishment of a branch, any listed service which its authorisation as an investment firm in its “home state” authorises it to provide (regulation 5). Certain offences in connection with provision of listed services and the establishment of branches are created by regulations 6 and 7. There are requirements concerning changes to the “requisite details” of a European investment firm (regulation 6(2) and (3)). Prohibitions and restrictions on a European investment firm in relation to the provision of listed services may be imposed by the Securities and Investments Board (regulations 9 to 11) and the Director General of Fair Trading (regulations 15 and 16), in the circumstances and in accordance with the conditions set out in the Regulations. Schedules 4 and 5 make supplemental provision in connection with such prohibitions and restrictions imposed by the Board and the Director General respectively. The Board (regulation 8) and the Bank (regulation 13) also have certain duties to prepare for supervision when a European investment firm is proposing to commence activities in the United Kingdom pursuant to the Regulations. Part III of the Regulations makes provision for the implementation of certain decisions by the Council or the Commission. Part IV of the Regulations makes provision for the carrying on of listed activities in other member States by “UK authorised investment firms”, which means certain persons who are authorised under the Financial Services Act 1986 or exempted under that Act by virtue of being admitted to the list maintained by the Bank of England for the purposes of section 43 (regulation 18). A UK authorised investment firm is not to provide any listed service by the provision of services nor establish a branch in another EEA State in order to provide such a service unless the notification requirements of Schedule 6 have been complied with (regulation 20). There are also requirements concerning changes to the “requisite details” of a UK authorised investment firm. Part V of the Regulations amends the Financial Services Act 1986. The principal changes relate to membership of self-regulating organisations (regulation 21), applications for, and grant and refusal of, authorisation by the Securities and Investments Board under that Act (regulations 22 and 23), the granting of exemption to certain EEA markets (regulation 25), the conditions for admission to and removal from the list maintained by the Bank of England for the purposes of section 43 of that Act (regulation 26), appointed representatives (regulation 27), reciprocal facilities for investment business (regulation 29) and certification by recognised professional bodies (regulation 31). Other amendments to the Financial Services Act 1986 are made by Schedule 7, in particular in relation to European investment firms. Part VI of the Regulations amends the Consumer Credit Act 1974. The principal changes relate to the effect of standard licences (regulation 34), the grant of standard licences (regulation 35), conduct of business (regulation 36), disclosure of information (regulation 39), and modification of subordinate legislation in relation to European investment firms (regulation 40). Part VII of the Regulations introduces new requirements obliging persons who wish to acquire or increase holdings in UK authorised investment firms in excess of certain specified sizes to notify the relevant regulators before doing so. The regulators concerned are given power to object to the proposed acquisition. Certain offences in connection with notification are created by regulation 43. The Part contains transitional provisions relating to agreements entered into before the date on which the requirements of the Part come into force. Part VIII of the Regulations makes provision as to certain miscellaneous matters. It contains provisions restricting the disclosure of confidential information relating to investment firms (regulation 48 and Schedule 8). It also contains provisions requiring the Securities and Investments Board to maintain a list of UK markets which meet certain requirements (regulation 49). It confers powers on the Board relating to the maintenance of financial resources by investment firms (regulation 50) and for the purpose of facilitating the assessment of the financial resources available to a group the members of which include an investment firm (regulations 51 to 53). The Part also confers powers on the Treasury to give directions to the Bank of England if such directions are necessary to ensure compliance with Investment Services Directive or the Capital Adequacy Directive (regulation 54). Finally, Part VIII (regulation 55 and Schedule 9) contains provisions relating to the position of certain EEA subsidiaries of EEA credit institutions. Prior to the coming into force of the Regulations, the ability of those subsidiaries to provide listed services in the United Kingdom was dealt with by the provisions of the Banking Coordination (Second Council Directive) Regulations 1992 (S.I. 1992/3218). From 1st January 1996, the ability of such subsidiaries to provide such services will be dealt with under the Regulations. Part IX (including Schedules 10 and 11) makes provision in relation to the functions conferred on the Securities and Investments Board by the Regulations and contains minor and consequential amendments to primary and secondary legislation as well as transitional provisions and savings.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source