UK Offence Report

Offences under this Part

paragraph 191F(2) of SCHEDULE 1 of The Financial Services and Markets Act 2000 (Controllers) Regulations 2009 (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

2 A person who gives notice to the Authority under section 178(1) and makes the acquisition to which the notice relates before the expiry date of the assessment period is guilty of an offence unless the Authority has approved the acquisition or given

a warning notice under section 189(4)(b)(i).

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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
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 paragraph 191F(2) of SCHEDULE 1?

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. On these words an offence is committed where a person gives notice to the Authority under section 178(1) and makes the acquisition to which the notice relates before the expiry date of the assessment period.
  2. Doing what the provision prohibits, or failing to do what it requires under the Financial Services and Markets Act 2000 (Controllers) Regulations 2009.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
9 March 2009
In force from
21 March 2009
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.

These Regulations amend the Financial Services and Markets Act 2000 (c.8) (“FSMA”) in order to give effect to Directive 2007/44/EC of the European Parliament and Council (O.J. L 247, 21.9.07, p.1.) (“the Acquisitions Directive”) and for related purposes. The Acquisitions Directive concerns the prudential assessment procedure and criteria to be applied where a decision has been taken to acquire a substantial holding in a financial services firm. The Acquisitions Directive amends EC Directives relating to credit institutions, investment firms, insurance and reinsurance firms and UCITS management companies. The Regulations implement the Acquisition Directive by substituting new provisions for provisions in Part 12 of FSMA (control over authorised persons). They also substitute a new Chapter 1A of Part 18 of FSMA (control over recognised investment exchanges) and provisions in section 422 of FSMA (controller) so that these provisions are consistent with the new provisions in Part 12. The new provisions, set out in Schedules 1 to 3 to these Regulations and other consequential changes to FSMA, are incorporated into FSMA by virtue of regulations 3 to 7. Regulation 8 provides for transitional arrangements so that any notice given under the FSMA before the date these Regulations come into force is to be considered under the provisions which were previously in force. Regulation 9 repeals a provision in the Civil Partnership Act 2004 (c. 33) which amended section 442 of the Act and revokes provisions in the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126) which introduced Chapter 1A of Part 18 into FSMA. Schedule 1 contains the new provisions for Part 12 of FSMA. These are sections 178 to 191M. Any person who decides to acquire or increase control over a UK authorised person (i.e. a UK financial services firm) must notify the Financial Services Authority (“the Authority”) before making the acquisition. The new provisions include notice requirements and the procedure that the Authority must follow when considering the notice and determining whether to grant approval or to oppose. Any person who decides to reduce their holding in a UK authorised person, having previously held control must also notify the Authority, but in that case there is no requirement for approval. Sections 191A to 191C provide for certain enforcement measures, including power for the Authority to object to a person’s control, power for the Authority to issue a restriction notice, restricting matters such as the exercise of voting power, and power for the court to order sale of shares or disposition of voting power. Decisions of the Authority under the new provisions may be challenged by way of an application to the Financial Services and Markets Tribunal. Requirements are enforced by way of criminal offences. Schedule 2 contains the new provisions for Chapter 1A of Part 18 of FSMA, similar to those in Part 12. Chapter 1A was inserted into FSMA pursuant to Directive 2004/39/EC of the European Parliament and Council of 21st April 2004 on markets in financial instruments (O.J. L 145, 30.4.2004, p.1.). It relates to control over investment exchanges An impact assessment of the effect of this instrument on the costs of business may be obtained from the Financial Services Strategy Team, HM Treasury, 1 Horse Guards Road, London SW1A 2HQ and is available on the Treasury’s website (www.hm-treasury.gov.uk).

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