UK Offence Report

Offence of misleading the FCA

regulation 34(3) of The Small and Medium Sized Business (Credit Information) Regulations 2015

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 This is the text as originally made; later amendments are not shown here.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 34(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 Small and Medium Sized Business (Credit Information) Regulations 2015, 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

'to a fine' with no stated maximum.

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
26 November 2015
In force from
1 January 2016
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 are made under Part 1 of the Small Business Enterprise and Employment Act 2015 (c.26) and impose a duty on designated banks to provide information about their small and medium sized business customers to designated credit reference agencies (‘CRAs’), and a duty, in turn, on designated CRAs to provide credit information about small and medium-sized businesses to finance providers. Part 1 of the Regulations includes relevant definitions, and establishes what information is within scope of the Regulations (this is set out fully in the Schedule). Part 2 of the Regulations provides that designated banks must provide credit information to designated CRAs where a designated CRA has requested it and where the customer has agreed. It specifies the manner in which the designated CRA must make such a request, the time within which the designated bank must respond and how the customer may indicate agreement. It provides generally for designated banks to provide updates to this information to designated CRAs, and sets out the circumstances in which such updates are not required. It also provides that designated CRAs must provide credit information to finance providers where the finance provider has requested it, where terms and conditions have been agreed and, where necessary, met, where the business to which the information relates has agreed to this and where the finance provider has confirmed such agreement to the credit reference agency. It specifies the purpose for which information provided in these circumstances is provided. Where a receiving finance provider is not itself a designated bank, the finance provider is required to agree reciprocally to provide credit information that the finance provider holds about its small or medium sized business customers to the designated CRA within 12 months. However, this obligation only relates to information relating to the period after which the designated CRA first provides credit information to the finance provider and the obligation does not arise at all where the customer to which the information relates has not agreed to provision of such information, or where it would be unlawful for the finance provider to provide it. Additionally, Part 2 makes provision for designated CRAs to provide information received under these Regulations to the Bank of England on request and limits the circumstances and manner in which the Bank of England may itself disclose such information. Finally, it provides for a right of action for a person who suffers loss as the result of a failure by a designated bank or designated CRA to comply with these obligations. Part 3 of the Regulations provides that the Treasury may designate a bank or a credit reference agency, and may revoke such a designation. It specifies criteria that the Treasury must have regard to when considering whether to make such a designation, and other factors the Treasury may consider when making a designation or revocation. It provides that the Treasury may consult other persons when considering a designation or revocation, and that the Treasury may exercise this power on its own initiative or at the request of another person. It also specifies that the Treasury must publish details of designations and revocations and maintain a publicly accessible record of current designations. Part 4 of the Regulations applies provisions in the Data Protection Act 1998 (c.29) and the Consumer Credit Act 1974 (c.39) about access and correction of information about individuals and small firms to designated CRAs that are not authorised by the Financial Conduct Authority (‘FCA’) under the Financial Services and Markets Act 2000 (c.8) in the same way that those provisions apply to CRAs that are authorised, so that the same protections apply to information about individuals and small firms provided to a CRA under the Regulations, whatever the status of the CRA. It also provides small or medium sized businesses with a right to apply to a court for an order to rectify, block, erase or destroy data held about the business by a designated CRA. This mirrors an equivalent provision in section 14 of the Data Protection Act 1998 which applies only to personal data about individuals. Part 5 of the Regulations applies provisions in the Financial Services and Markets Act 2000 to extend the remit of the Financial Ombudsman Service (‘FOS’) so that a complaint may be referred to the FOS about a designated CRA. This extends the remit of the FOS such that a person who would be able to seek a FOS decision when dealing with a CRA authorised by the FCA is also able to seek a FOS decision when dealing with a designated CRA which is not so authorised. It provides that the FCA must make compulsory jurisdiction rules relating to the activity of designated CRAs. Part 6 of the Regulations makes provision in respect of the FCA. In particular, it confers on the FCA functions in relation to the monitoring of compliance with, and enforcement of, certain provisions of the Regulations (regulations 3, 5, 6 and 7 and any requirements on persons other than the FCA imposed under Part 5 or Part 6). In doing so, Part 6 applies certain provisions of primary and secondary legislation (with modifications) in respect of the FCA’s function under the Regulations. Part 7 of the Regulations provides that the Treasury must review the Regulations from time to time, and publish a report of its conclusions. The first such report must be published within five years of the commencement date of the Regulations, and thereafter at least every five years. An impact assessment of the effect of the Regulations has been prepared and is available on the Government’s website (https://www.gov.uk) or from HM Treasury, 1 Horse Guards Road, London, SW1A 2HQ and is annexed to the Explanatory Memorandum to these Regulations.

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