UK Offence Report

Power to restrict the entry into credit agreements and to withdraw or vary a restriction

paragraph 2(5) of SCHEDULE 5 of The Payment Services 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

5 An institution contravening a restriction is guilty of an offence and liable— a on summary conviction to a fine, which in Scotland or Northern Ireland may not exceed the statutory maximum; b on conviction on indictment, to a fine.

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 This is the text as originally made; later amendments are not shown here.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 institution
Conduct
breaching the provision
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 institution 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 paragraph 2(5) of SCHEDULE 5?

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. Doing what the provision prohibits, or failing to do what it requires under the Payment Services Regulations 2017.

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
18 July 2017
In force from
Not determined
Extent
E+W

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 transpose in part Directive 2015/2366/EU of the European Parliament and of the Council of 25th November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No. 1093/2010, and repealing Directive 2007/64/EC (OJ L 337 23.12.2015, p.35) also known as the Revised Payment Services Directive or “PSD2”. The Financial Conduct Authority (“FCA”) is responsible for transposing other parts of PSD2. A transposition note setting out how PSD2 will be transposed into UK law is published with the Explanatory Memorandum to these Regulations on legislation.gov.uk. PSD2 repeals and replaces Directive 2007/64/EC of the European Parliament and of the Council of 13th November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, also known as the Payment Services Directive or “PSD1” (OJ L 319 5.12.2007, p.1). Likewise these Regulations revoke and replace the Payment Services Regulations 2009 (S.I. 2009/209), which in large part transposed PSD1 into UK law (see regulation 157 and Schedule 9 of these Regulations). The Regulations set out a regulatory regime for providers of payment services, restrict the provision of payment services as a regular business to certain types of entities (“payment service providers”), and require the authorisation or registration of providers of payment services which do not otherwise have the status of payment service provider. The services subject to regulation, and excluded services which are not subject to regulation, are set out in Schedule 1. Part 2 and Schedule 2 provide for authorisation and registration under the Regulations, including the conditions and procedure for authorisation or registration. Part 3 and Schedule 3 contain provisions which apply to entities authorised under the Regulations but, with some limited exceptions, do not apply to entities registered under the Regulations. The Part includes requirements relating to capital, safeguarding of customers’ funds and outsourcing of functions, and sets out the procedure for the exercise of the right under PSD2 for authorised entities to provide payment services in other EEA states. Part 4 contains provisions which apply to entities authorised and registered under the Regulations, and includes restrictions on the activities which such entities can carry on alongside the provision of payment services and the use of agents to provide payment services. Part 5 requires entities which provide services which are excluded from regulation as payment services to notify the FCA that they are providing such services. Part 6 and Schedule 4 contain requirements for payment service providers to provide to their customers information about the terms on which services are provided and about individual transactions. Part 7 contains provisions about the way in which payment services are to be provided, including the way in which transactions are to be authorised, the timing of transactions, the interaction between these Regulations and the Consumer Credit Act 1974 (c. 39), and liability in the event of a problem arising with a transaction. This Part also contains provisions relating to account information services and payment initiation services, which are types of payment services which are not regulated under PSD1. Part 8 contains provisions relating to access to payment systems and to bank accounts for payment service providers. Part 9 and Schedules 5 and 6 provide for the FCA to monitor and enforce compliance with many of the requirements of the Regulations, and provides powers for it to do so, including power to make rules in connection with the provision of payment services by entities authorised or registered under these Regulations using its powers in the Financial Services and Markets Act 2000 (c. 8). Part 10 provides for the Payment Systems Regulator to monitor and enforce compliance with some of the requirements of the Regulations. Part 11 contains transitional arrangements for entities which already provide payment services, including those which are authorised or registered under the Payment Services Regulations 2009. Schedule 7 makes provision in relation to Gibraltar. Schedule 8 makes amendments to legislation which include— amendments to ensure the availability of the Financial Ombudsman Service in relation to payment services; amendments to consumer rights legislation prohibiting the charging of fees for the use of certain types of payment for certain transactions, and giving enforcement functions to trading standards authorities; amendments to the Electronic Money Regulations 2011 (S.I. 2011/99) to align many of the provisions of those Regulations with the provisions of these Regulations, as required by PSD2; and various consequential amendments. 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 and will be published with the Explanatory Memorandum to these Regulations on 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 →

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