UK Offence Report

3 A person who makes an acquisition in contravention of the Bank’s decision under Article 27(8) of the CSD…

regulation 5K(3) of The Central Securities Depositories Regulations 2017

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 makes an acquisition in contravention of the Bank’s decision under Article 27(8) of the CSD regulation 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 This is the text as originally made; later amendments are not shown here.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 5K(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 makes an acquisition in contravention of the Bank’s decision under Article 27(8) of the CSD regulation.
  2. Doing the thing the provision prohibits under the Central Securities Depositories Regulations 2017, 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
Maximum prison (on indictment)
2 years

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
6 November 2017
In force from
28 November 2017
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 in part certain Articles of Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories (“CSDs”) (OJ No L257, 28.8.2014, p1) (“the CSD regulation”). Part 2 amends Part 18 of the Financial Services and Markets Act 2000 (recognised investment exchanges and clearing houses) (“the Act”) (c.8) in order to implement the CSD regulation. Part 18 of the Act does not currently make explicit provision for CSDs, although they may be recognised clearing houses. Part 2 makes provision for Part 18 of the Act to apply to recognised CSDs as a new category of recognised body. Recognised bodies are exempt from the general prohibition in section 19 of the Act. Part 2 also provides for EEA CSDs and third country CSDs to be exempt from the general prohibition. Provisions of Part 18 are applied in relation to recognised CSDs (and in some cases, EEA CSDs) with modifications for consistency with the CSD regulation, including— powers of the Bank of England (the “Bank”) to make, vary and revoke recognition orders; the recognition requirements for recognised bodies; the Bank’s information gathering and investigations powers; the Bank’s power to make rules; the Bank’s power to charge fees; the Bank’s powers to give directions to recognised bodies, impose financial penalties and of public censure. Part 2 also makes consequential amendments to other provisions of the Act. Part 3 amends Part 7 of the Companies Act 1989 (c.40) (financial markets and insolvency) to apply that Part in relation to recognised CSDs in a similar way to the way in which it applies in relation to recognised clearing houses. 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 to those Regulations will no longer apply to CSDs, and a new Part 7 is inserted which provides that requirements of the CSD regulation must be met in order for a CSD to obtain and retain recognition. Part 5 amends the Central Securities Depositories Regulations 2014 (S.I. 2014/2879). The amendments include— designating the FCA as competent authority for the supervision of investment firms and participants in securities settlement systems for the purposes of the CSD regulation and the Bank as competent authority for the supervision of central counterparties for the purposes of that Regulation; providing the Bank with power to obtain information from settlement internalisers, and to impose penalties and publish statements of censure if settlement internalisers contravene Article 9 of the CSD regulation; providing the Bank with enforcement powers in relation to the requirements in Article 27(7) and (8) of the CSD regulation (control over a CSD); providing for reference to be made to the Upper Tribunal in respect of FCA and Bank decisions under the CSD regulation. Part 6 contains saving and transitional provisions. The Schedule makes consequential amendments to other primary and secondary legislation. An impact assessment has not been produced for this instrument as no significant impact on the costs of business or the voluntary sector is foreseen.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

What Parliament said

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

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