UK Offence Report

Misleading the FCA

regulation 20(3) of The Immigration Act 2014 (Bank Accounts) Regulations 2014

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 This is the text as originally made; later amendments are not shown here.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 20(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 Immigration Act 2014 (Bank Accounts) Regulations 2014, 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
£5,000
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
19 November 2014
In force from
12 December 2014
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 make provision, largely by applying and making provisions corresponding to 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 prohibition in section 40(1) (Prohibition on opening current account for disqualified persons) of the Immigration Act 2014 (c. 22) (the “Act”). Section 40(1) of the Act prohibits certain banks and building societies (referred to in the Regulations as “current account authorised persons”) from opening current accounts for “disqualified persons”. A person is “disqualified” for the purposes of section 40, per subsections 40(2) and 40(3)(b), (a) if he or she is in the UK, (b) if he or she requires leave to enter or remain in the UK but does not have such leave, and (c) if he or she is a person for whom the Secretary of State considers that a current account should not be opened by a current account authorised person. Enforcement action may be taken against current account authorised persons and, in certain circumstances, against the approved persons of current account authorised persons (approved persons include for example persons in certain senior management roles). Part 2 makes provision about the FCA. In particular it provides for the FCA to have certain functions in relation to the supervision of compliance with these Regulations and section 40 of the Act, including with respect to putting in place arrangements designed to enable it to enforce the prohibition in section 40(1) and the requirements of the Regulations, as well as with respect to complaints, penalties and fees. This Part also provides for the FCA to be exempt from damages where it is carrying out its functions under the Regulations. Part 3 makes provision about reporting and information. It makes provision for record keeping on the part of current account authorised persons, applies reporting obligations to the FCA on the part of current account authorised persons, and provides for the FCA to obtain relevant information from current account authorised persons and from organisations or authorities specified by the Secretary of State (pursuant to section 40(3)(a) of the Act) with whom current account authorised persons are required to check to identify disqualified persons. This Part also applies restrictions on disclosure of relevant information by the FCA. Part 4 provides for the FCA with investigatory powers by applying certain provisions of Part 11 of the 2000 Act giving the FCA investigatory powers with appropriate modifications. Part 5 provides for disciplinary measures and offences for breach of the prohibition in section 40 of the Act or the requirements of these Regulations. Regulations 15 and 16 permit the FCA to publish a statement where it considers that a current account authorised person has breached a relevant requirement or where an approved person has been knowingly concerned in such a breach. Regulation 17 provides the FCA with the ability to impose financial penalties for such conduct. Regulations 18 and 19 enable the FCA to restrict permissions under the 2000 Act to carry out activities regulated under that Act and to suspend or restrict approvals of performance of functions controlled under the 2000 Act. Regulation 20 makes it an offence to mislead the FCA. Regulation 21 limits the extent to which a person can be liable for both misleading the FCA (under regulation 20) and to a penalty imposed pursuant to regulation 17. Regulations 22 and 23 make provision for proceedings under regulation 20. Part 6 sets out procedural requirements to be followed by the FCA when taking disciplinary action under Part 5, including with respect to warning notices and decision notices where the FCA proposes or decides to take disciplinary action and the ability of persons concerned to refer to the Upper Tribunal. Part 7 applies the provisions in the 2000 Act on references to the Upper Tribunal with appropriate modifications. A full impact assessment of the effect that these Regulations will have on the costs of business and the voluntary sector is available from Her Majesty’s Treasury, 1 Horse Guards Road, London SW1A 2HQ or on www.gov.uk and is published alongside the 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