UK Offence Report

Misleading the FCA

regulation 19(3) of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Referral Fees) Regulations 2013

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 person who contravenes paragraph (1) or (2) 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 This is the text as originally made; later amendments are not shown here.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
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 19(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. On these words an offence is committed where a person contravenes paragraph (1) or (2).
  2. Doing the thing the provision prohibits under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Referral Fees) Regulations 2013, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

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
2 July 2013
In force from
Not determined
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 apply various provisions of the Financial Services and Markets Act 2000 (c. 8) (the “2000 Act”) to enable the Financial Conduct Authority (the “FCA”) to enforce the rules against referral fees contained in sections 56 to 60 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (the “2012 Act”). These rules prohibit the payment and the receipt of any fee for the referral to another person of claims for damages in connection with personal injury or death. The rules may be enforced against referral fees authorised persons (as defined in regulation 2 and the Schedule), which are primarily those conducting insurance and insurance mediation or those in the same group such authorised persons. Enforcement action may also be taken in certain circumstances against the approved persons of referral fees authorised persons (approved persons include for example persons in certain senior management roles). Part 2 of these Regulations makes provision in respect of the FCA under these Regulations. In particular it confers on the FCA functions in relation to the supervision of, compliance with and monitoring of these Regulations and section 56 of the 2012 Act. Part 3 provides for certain payments to be treated as referral fees unless the referral fees authorised person shows that the payment was not made as a referral fee. Part 4 provides for referral fees authorised persons to give the FCA information at the FCA’s direction and for the restrictions on disclosure of information in the 2000 Act to apply. Part 5 applies the provisions of the 2000 Act on investigations with appropriate modifications. Part 6 provides for disciplinary measures and offences for breach of the rules against referral fees and provisions imposed by or under these Regulations. Regulations 14 and 15 enable the FCA to publish a statement of a breach of the Regulations by an referral fees authorised person or approved person. Regulation 16 enables the FCA to impose financial penalties for breach of the Regulations by such persons. Regulations 17 and 18 enable the FCA to restrict permission under the 2000 Act to carry out activities regulated under the 2000 Act or suspend or restrict approval of performance of functions controlled under the 2000 Act. Regulation 19 makes it an offence to mislead the FCA. Part 7 applies Part 25 of the 2000 Act concerning injunctions and restitution with appropriate modifications. Part 8 sets out procedural requirements to be followed by the FCA when taking disciplinary action under Part 6. Part 9 applies the provisions in the 2000 Act on hearings and appeals before the Upper Tribunal. Part 10 provides that referral fees authorised persons will be regulated persons for the purposes of rules against referral fees provided for in sections 56 to 60 of the 2012 Act. An impact assessment has not been prepared for this instrument, as impacts were considered as part of the impact assessment for the 2012 Act. That can be found at www.justice.gov.uk/downloads/legislation/bills-acts/legal-aid-sentencing/referral-fees-ia.pdf. and is published with the Explanatory Memorandum alongside these Regulations on www.legislation.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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