UK Offence Report

Offences: Article 63 inspections

regulation 19 of The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) 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

19 Any person who intentionally obstructs the exercise of any rights conferred by

a warrant under regulation 17(5) is guilty of an offence and liable on summary conviction to imprisonment for

a term not exceeding three months or

a fine not exceeding level

5 on the standard scale, or both.

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 This is the text as originally made; later amendments are not shown here.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
obstructing an official exercising a power
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 (intentionally).

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: intentionally.

What would breach regulation 19?

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 intentionally obstructs the exercise of any rights conferred by a warrant under regulation 17(5).
  2. Refusing to let an inspector onto premises they are entitled to enter under the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013.
  3. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  4. Physically blocking an examination, or removing something an officer has said they intend to inspect.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
3 months

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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
6 March 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 implement certain Articles of Regulation (EU) 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ No L 201, 27.7.2012, p1) (“the EMIR regulation”). Part 2 amends Part 18 of the Financial Services and Markets Act 2000 (c.8) (recognised investment exchanges and clearing houses), in order to make the provisions concerning clearing houses compatible with the EMIR regulation. The Regulations create a new category of clearing house, known as a “recognised central counterparty”, which are those central counterparties which are subject to, and recognised pursuant to the provisions of, the EMIR regulation. Some provisions of Part 18 of the Financial Services and Markets Act 2000 will no longer apply to these bodies and in many cases the requirements are replaced by requirements emanating from the EMIR regulation. Part 3 amends the Companies Act 1989 to implement and facilitate the provisions on segregation and portability of accounts in Articles 39 and 48 of the EMIR regulation. Part 4 amends the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001 (S.I. 2001/995). The requirements relating to clearing houses in Part 3 of the Schedule are disapplied in relation to recognised central counterparties, and new Parts 5 and 6 are created which provide that the requirements of the EMIR regulation must be met in order for a body to gain recognition as a recognised central counterparty, together with the additional requirements set out in those Parts. In Part 5, regulation 6 designates the Bank of England as the competent authority under the EMIR regulation for central counterparties. In most cases the Financial Conduct Authority (“FCA”) is designated as competent authority under the EMIR regulation for financial and non-financial counterparties, trading venues, trade repositories and clearing members of central counterparties, but the Prudential Regulation Authority has certain competent authority functions in relation to persons authorised by it. Regulation 7 grants powers to the FCA to obtain information, and regulation 9 gives the FCA power to impose penalties for contravening the EMIR regulation and certain provisions of the Regulations in order to implement Articles 12 and 22(3) of the EMIR regulation. Part 5 also makes provision with regard to applications and notifications to the FCA under the EMIR regulation. Part 6 gives the Bank of England enforcement powers in relation to the requirements in Article 31 of the EMIR regulation (acquisition of control over central counterparties). Part 7 makes provision to enable the European Securities and Markets Authority to gain access to telephone and data traffic records and make on-site inspections so that it may carry out its obligations under Title 6 of the EMIR regulation (registration and supervision of trade repositories). In each case the Authority must first obtain authorisation from the High Court, or in Scotland the Court of Session. Part 8 contains consequential amendments to primary and secondary legislation, and Part 9 makes transitional and saving provisions. Part 10 provides for these Regulations to be reviewed before 1st April 2018 and subsequently at intervals of not more than five years. A Tax Information and Impact Note has not been prepared for this Instrument as it contains no substantive changes to tax policy.

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