UK Offence Report

Misleading the FCA

regulation 29(3) of The Data Reporting Services Regulations 2017 (revoked)

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 This is the text as originally made; later amendments are not shown here.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 29(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 Data Reporting Services 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

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
21 June 2017
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 Title V of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments (recast) (OJ no L173, 12/6/2014, p349) (“MiFID 2”). “Data reporting services” is defined in regulation 2. An approved publication arrangement (“APA”) enables investment firms to meet their obligations to publish trade reports under Articles 20 and 21 of Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments (OJ L173, 12/6/2014, p84) (“MiFIR”). The information must initially be published on a reasonable commercial basis and after 15 minutes without charge. An approved reporting mechanism (“ARM”) provides services to investment firms to enable them to meet their transaction reporting obligations. A consolidated tape provider (“CTP”) is a business which collates all the transaction data which must be made available by regulated markets, multilateral trading facilities and organised trading facilities (“trading venues”) and investment firms (as published by APAs) under MiFIR and makes that available to the public as a continuous data stream. That data stream must be made available to the public on a reasonable commercial basis. A business providing APA, ARM or CTP services must be authorised under these Regulations. Regulation 3 gives effect to Article 93 of MiFID 2 which provides that requirements on CTPs relating to the reporting of non-equity financial instruments do not commence until 3rd September 2019. Regulation 4 enables the Financial Conduct Authority (“FCA”) to enforce directly applicable requirements imposed on data reporting service providers under MiFIR and directly applicable EU Regulations made under MiFID 2 and MiFIR. Regulation 5 prohibits the provision of data reporting services except by persons who are— authorised under these Regulations; EEA data reporting service providers authorised in their home state and who are exercising their right to provide such services in the United Kingdom under Article 60 of MiFID 2; or authorised investment firms, credit institutions or recognised investment exchanges (in each case when operating a trading venue) where the FCA has verified that the firm complies with Title V of MiFID 2. Regulation 6 requires the FCA to keep a register of data reporting service providers. Regulations 7 to 12 provide for the making of applications for authorisation as a data reporting service provider to the FCA, the information which must be provided with applications, the conditions for authorisation, the process to determine applications, and when authorisations may be cancelled or varied. They also make provision relating to verifications by the FCA for the purposes of Article 59.2 of MiFID 2. Article 59.2 is a derogation from the authorisation requirement for investment firms, credit institutions and recognised investment exchanges operating a trading venue which comply with Title V of that directive. Part 3 transposes operating conditions set out in Articles 63 to 66 of MiFID 2 for APAs, ARMs and CTPs. Chapter 1 of Part 4 confers functions and enforcement powers on the FCA, which is designated as the competent authority for the purposes of Title V of MiFID 2. The functions include monitoring of compliance with and enforcement of these Regulations and giving guidance. The FCA may make a statement of public censure, impose financial penalties, and restrict the ability of a data reporting service provider to provide those services. This Chapter also contains criminal offences in respect of a breach of the requirement to be authorised under these Regulations and in respect of misleading the FCA. Chapters 2 and 3 of Part 4 apply provisions of the Financial Services and Markets Act 2000 (c.8) in respect of the Regulations, including Part 9 (Upper Tribunal hearings and appeals), Part 11 (information gathering and investigations), Part 25 (injunctions and restitution), Part 27 (offences), provisions relating to the disclosure of confidential information and FCA fees, and related secondary legislation. Regulation 46 provides that data reporting service providers authorised in Gibraltar are to be treated under these Regulations as if they have been authorised in an EEA State other than the United Kingdom. Regulation 48 requires the Treasury to review these Regulations every five years. A transposition note setting out how MiFID 2 is transposed into UK law is available from HM Treasury, 1 Horse Guards Road, London SW1A 2HQ and is published on www.legislation.gov.uk alongside these Regulations. A full impact assessment of the effect that these Regulations will have on the costs of business and the voluntary sector is available from HM Treasury, 1 Horse Guards Road, London SW1A 2HQ or on www.gov.uk and is published alongside these Regulations on www.legislation.gov.uk.

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 →

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