UK Offence Report

Misleading the FCA

regulation 16(3) of The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018

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 This is the text as originally made; later amendments are not shown here.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 16(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 Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018, 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
1 February 2018
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 parts of Regulation (EU) No 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds (OJ L171, 29/06/2016 p.1) and amending Directive 2008/48/EC (OJ L133, 22/05/2008 p.66) and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L173 12/06/2014 p.1) (“the EU Benchmarks Regulation 2016”). Part 1 of these Regulations (introductory provisions) designates the Financial Conduct Authority (the “FCA”) as the competent authority in the United Kingdom responsible for carrying on the duties of the competent authority under the EU Benchmarks Regulation 2016. Part 2 of these Regulations (FCA powers over Miscellaneous BM persons) makes provision for the FCA to exercise powers in respect of persons who are involved in the provision of a benchmark (Miscellaneous BM persons) but are not benchmark administrators within the meaning of Article 3 of the EU Benchmarks Regulation 2016. Part 3 of these Regulations (FCA powers in relation to persons publishing or contributing to benchmarks) makes provision for the FCA to impose requirements on persons requiring them to administer or contribute to a benchmark. Part 4 of these Regulations (administering a benchmark) makes provision in respect of the administration of a benchmark. Part 5 of these Regulations (amendments to the Act) makes amendments to the Financial Services and Markets Act 2000 (c.8) (“the Act”) to give effect to the EU Benchmarks Regulation 2016. Section 22 of the Act (regulated activities) is amended to provide that administration of a benchmark is a regulated activity. There are also other amendments to the Act. Part 6 of these Regulations (amendments to secondary legislation) makes amendments to secondary legislation made under the Act. Amendments are made to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544) to provide that administering a regulated benchmark is a specified activity for the purposes of section 22 of the Act. There are also amendments to other secondary legislation. Part 7 of these Regulations makes transitional provisions in respect of benchmarks. Part 8 of these Regulations (miscellaneous provisions) makes a minor amendment to the Act for the purposes of Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (“the Directive”) (OJ No L194, 19.7.2016, p1). Provision is also made in Part 8 for a review of these Regulations within five years. A full regulatory impact assessment has not been produced for this instrument as no impact on the private or 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.

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