UK Offence Report

3 A relevant person (“B”) who, in purported compliance with a requirement imposed on B under section 131E or…

regulation 131L(3) of The Financial Services and Markets Act 2000 (Short Selling) Regulations 2012 (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

3 A relevant person (“B”) who, in purported compliance with

a requirement imposed on B under section 131E or 131F—

a provides information which B knows to be false or misleading in

a material particular, or

b recklessly provides information which is false or misleading in

a material particular, is guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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
making a false or misleading statement
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (recklessly).

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

Classifier’s reasoning: mens rea word in the offence-creating words: recklessly.

What would breach regulation 131L(3)?

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. Entering a figure on a form or return that is known to be wrong under the Financial Services and Markets Act 2000 (Short Selling) Regulations 2012.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

this is the level 5 value when the instrument came into force (2012-11-01); 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
4 October 2012
In force from
1 November 2012
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 implement certain Articles of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps (OJ no L 86, 24.3.2012, p1) (“the short selling regulation”). Regulation 2(2) repeals sections 131B to 131D of the Financial Services and Markets Act 2000 (c.8) (“the Act”) which give the Financial Services Authority (“the Authority”) power to make short selling rules; this power is superseded by the short selling regulation. Regulation 7 contains a related saving provision. Article 32 of the short selling regulation (designation of competent authorities) is implemented by regulation 4, which designates the Authority as the competent authority for the purposes of the short selling regulation. Article 33 of the short selling regulation (powers of competent authorities) is partially implemented as follows. Regulation 2(3) and (4) amends sections 131E and 131F of the Act to give the Authority power to require information and documents which it reasonably requires for the purpose of the exercise by it of functions under the short selling regulation. Regulation 2(5) makes provision for on-site inspections by means of a compulsory power of entry under warrant where an authorised person has failed to comply with a requirement for information imposed under section 131E or 131F of the Act. Regulation 2(11) applies section 168 of the Act (appointment of persons to carry out investigations) in relation to suspected or actual contraventions of the short selling regulation. Regulation 2(12) extends section 380 of the Act to make the Authority’s power to apply to the court for an injunction available in relation to an actual or likely breach of the short selling regulation. Regulation 2(13) extends section 382 of the Act to give the court power to make a restitution order in respect of breaches of the short selling regulation. Article 37 of the short selling regulation (cooperation in the case of a request for an on-site inspection or an investigation) is partially implemented by regulation 2(3) which makes provision for the Authority to exercise its powers to require information at the request of the competent authority of an EEA State or ESMA. Regulation 2(5) makes provision for the Authority to appoint an investigator and to apply for a warrant for entry of premises at the request of the competent authority of an EEA State. Articles 38 and 40 of the short selling regulation are partially implemented by regulation 3 which amends the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 (S.I. 2001/2188) to give effect to the restrictions in those Articles on the disclosure of information to the competent authorities of States which are not EEA States. The requirement to establish rules on penalties and administrative measures in Article 41 of the short selling regulation is implemented by regulation 2(7) which applies the Authority’s power in section 131G of the Act to impose penalties or publish a statement censuring a person in relation to breaches of the short selling regulation, and regulation 2(8) which makes criminal penalties available for a failure by an authorised person to comply with information requirements imposed under section 131E or 131F of the Act. The Regulations also contain provision about notifications and applications to the Authority under the short selling regulation and make consequential amendments to the Act. Regulation 8 requires the Treasury to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Treasury to consider whether the Regulations should remain as they are, or be revoked or amended. A further instrument would be needed to revoke or amend the Regulations. A full impact assessment of the effect that these Regulations will have on the costs of business and the voluntary sector is available from Victoria Gibbs, Primary Markets and Market Conduct team, Her Majesty’s Treasury, 1 Horse Guards Road, London SW1A 2HQ and is published with the Explanatory Memorandum alongside the Regulations on www.legislation.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