Office of Public Sector Information

Failure to comply with information requirement

23 (1) If on an application made by—

(a) an enforcement authority, or

(b) a local weights and measures authority or DETINI pursuant to arrangements made with the OFT—

(i) by or on behalf of the authority; or

(ii) by DETINI,

it appears to the court that a person (the “information defaulter”) has failed to do something that they were required to do under paragraph 19(1), the court may make an order under this paragraph.

(2) An order under this paragraph may require the information defaulter—

(a) to do the thing that they failed to do within such period as may be specified in the order;

(b) otherwise to take such steps to remedy the consequences of the failure as may be so specified.

(3) If the information defaulter is a body corporate, a partnership or an unincorporated body of persons that is not a partnership, the order may require any officer of the body corporate, partnership or body, who is (wholly or partly) responsible for the failure to meet such costs of the application as are specified in the order.

(4) In this paragraph “the court” means—

(a) in England and Wales and Northern Ireland, the High Court or the county court;

(b) in Scotland, the Court of Session or the sheriff court.

Powers of local enforcement officers

24 (1) A local enforcement officer may only exercise powers under this Part of this Schedule pursuant to arrangements made with the OFT—

(a) by or on behalf of the relevant local weights and measures authority, or

(b) by DETINI.

(2) Anything done or omitted to be done by, or in relation to, a local enforcement officer in the exercise or purported exercise of a power in this Part of this Schedule is treated for all purposes as if done or omitted to be done by, or in relation to, an officer of the OFT.

(3) Sub-paragraph (2) does not apply for the purposes of criminal proceedings brought against the local enforcement officer, the relevant local weights and measures authority, DETINI or the OFT, in respect of anything done or omitted to be done by the officer.

(4) A local enforcement officer must not disclose to any person other than the OFT and the relevant local weights and measures authority or, as the case may be, DETINI information obtained by the officer in the exercise of powers under this Part of this Schedule unless—

(a) the officer has the approval of the OFT to do so, or

(b) the officer is under a duty to make the disclosure.

(5) In this paragraph “the relevant local weights and measures authority”, in relation to a local enforcement officer, means the authority of which the officer is an officer.

Part 6 Enforcement: civil penalties

Power to impose civil penalties

25 (1) An enforcement authority may impose a penalty of such amount as it considers appropriate on a person who fails to comply with a requirement imposed—

(a) by a direction under this Schedule, or

(b) by a condition of a licence under paragraph 17.

For this purpose “appropriate” means effective, proportionate and dissuasive.

(2) No such penalty is to be imposed if the authority is satisfied that the person took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with.

(3) In deciding whether to impose a penalty for failure to comply with a requirement, an enforcement authority must consider whether the person followed any relevant guidance which was at the time—

(a) issued by a supervisory authority or any other appropriate body,

(b) approved by the Treasury, and

(c) published in a manner approved by the Treasury as suitable in their opinion to bring the guidance to the attention of persons likely to be affected by it.

(4) In sub-paragraph (3) “appropriate body” means a body which regulates or is representative of any trade, profession, business or employment carried on by the person.

(5) A person on whom a penalty is imposed under this paragraph is not liable to be proceeded against for an offence under paragraph 30 in respect of the same failure.

Imposition of penalty by HMRC: procedure and reviews

26 (1) This paragraph applies where HMRC decide to impose a penalty under paragraph 25 on a person.

(2) HMRC must give the person notice of—

(a) their decision to impose the penalty and its amount,

(b) the reasons for imposing the penalty,

(c) the right to a review under this paragraph, and

(d) the right to appeal under paragraph 28.

(3) The person may by notice to HMRC require them to review their decision.

(4) A notice requiring a review may not be given after the end of the period of 45 days beginning with the day on which HMRC first gave the person notice under sub-paragraph (2).

(5) On a review under this paragraph, HMRC must either—

(a) confirm the decision, or

(b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they consider appropriate.

(6) Where HMRC do not, within the period of 45 days beginning with the day the notice under sub-paragraph (3) was given, give notice to the person of their determination of the review, they are to be taken to have confirmed their decision.

Imposition of penalty by other enforcement authority: procedure

27 (1) This paragraph applies if the FSA, the OFT or DETINI (“the authority”) proposes to impose a penalty under paragraph 25 on a person.

(2) The authority must give the person notice of—

(a) the proposal to impose the penalty and the proposed amount,

(b) the reasons for imposing the penalty, and

(c) the right to make representations to the authority within a specified period (which may not be less than 28 days).

(3) The authority must then decide, within a reasonable period, whether to impose a penalty under paragraph 25 and must give the person notice—

(a) if it decides not to impose a penalty, of that decision;

(b) if it decides to impose a penalty, of the following matters—

(i) the decision to impose a penalty and the amount,

(ii) the reasons for the decision, and

(iii) the right to appeal under paragraph 28.

Appeal against imposition of civil penalty

28 (1) A person may appeal to the tribunal against—

(a) a decision of HMRC on a review under paragraph 26;

(b) a decision of the FSA or the OFT under paragraph 27.

(2) A person may appeal to the High Court in Northern Ireland against a decision of DETINI under paragraph 27.

(3) On the appeal the tribunal or court may—

(a) set aside the decision appealed against, and

(b) impose any penalty that could have been imposed by the body whose decision is appealed or remit the matter to that body.

(4) An appeal against a decision of HMRC may not be made after the end of the period of 30 days beginning with—

(a) the date of the document notifying the person of the decision, or

(b) if paragraph 26(6) (deemed confirmation of decision) applies, the day after the end of the period mentioned there.

(5) In this paragraph “the tribunal” means the First-tier Tribunal or, where so provided by or determined under Tribunal Procedure Rules, the Upper Tribunal.

(6) The Treasury may by order provide that, until a time specified in the order, appeals under sub-paragraph (1) are to be made—

(a) in the case of a decision of HMRC, to a VAT and duties tribunal;

(b) in the case of a decision of the FSA, to the Financial Services and Markets Tribunal;

(c) in the case of a decision of the OFT, to the Consumer Credit Appeals Tribunal;

(rather than to the tribunal).

(7) An order under sub-paragraph (6) may provide that any enactment applies (with or without modifications) in relation to an appeal to a tribunal mentioned in paragraph (a), (b) or (c) of that sub-paragraph.

(8) Such an order is subject to negative resolution procedure.

Payment and recovery of civil penalties

29 (1) A penalty imposed under paragraph 25 is payable to the enforcement authority that imposed it.

(2) Any such penalty is a debt due to the authority and is recoverable accordingly.

Part 7 Enforcement: offences

Offences: failure to comply with requirement imposed by direction

30 (1) A person who fails to comply with a requirement imposed by a direction under this Schedule commits an offence, subject to the following provisions.

(2) No offence is committed if the person took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with.

(3) In deciding whether a person has committed an offence under this paragraph the court must consider whether the person followed any relevant guidance that was at the time—

(a) issued by a supervisory authority or any other appropriate body,

(b) approved by the Treasury, and

(c) published in a manner approved by the Treasury as suitable in their opinion to bring the guidance to the attention of persons likely to be affected by it.

(4) In sub-paragraph (3) “appropriate body” means a body that regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.

(5) A person guilty of an offence under this paragraph is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(6) A person who is convicted of an offence under this paragraph is not liable to a penalty under paragraph 25 in respect of the same failure.

Offences in connection with licences

31 (1) A person commits an offence who for the purpose of obtaining a licence under paragraph 17—

(a) provides information that is false in a material respect or a document that is not what it purports to be, and

(b) knows that, or is reckless as to whether, the information is false or the document is not what it purports to be.

(2) A person guilty of an offence under this paragraph is liable on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.

Extra-territorial application of offences

32 (1) An offence under this Schedule may be committed by a United Kingdom person by conduct wholly or partly outside the United Kingdom.

(2) Nothing in this paragraph affects any criminal liability arising otherwise than under this paragraph.

Prosecution of offences

33 (1) Proceedings for an offence under this Schedule may be instituted in England and Wales only by—

(a) the FSA;

(b) the Director of Revenue and Customs Prosecutions;

(c) the OFT;

(d) a local weights and measures authority; or

(e) the Director of Public Prosecutions.

(2) Proceedings for an offence under this Schedule may be instituted in Northern Ireland only by—

(a) the FSA;

(b) HMRC;

(c) the OFT;

(d) DETINI; or

(e) the Director of Public Prosecutions for Northern Ireland.

(3) In section 168(4) of the Financial Services and Markets Act 2000 (c. 8) (appointment by FSA of persons to carry out investigation), after paragraph (b) insert—

“(ba) a person may be guilty of an offence under Schedule 7 to the Counter-Terrorism Act 2008 (terrorist financing or money laundering);”.

(4) In section 402(1) of that Act (power of FSA to institute proceedings), omit the “or” before paragraph (b) and after that paragraph insert— “or

(c) Schedule 7 to the Counter-Terrorism Act 2008 (terrorist financing or money laundering).”.

(5) HMRC may conduct a criminal investigation into any offence under this Schedule.

(6) In sub-paragraph (5) “criminal investigation” has the meaning given by section 35(5)(b) of the Commissioners for Revenue and Customs Act 2005 (c. 11).

Jurisdiction to try offences

34 Where an offence under this Schedule is committed outside the United Kingdom—

(a) proceedings for the offence may be taken at any place in the United Kingdom, and

(b) the offence may for all incidental purposes be treated as having been committed at any such place.

Time limit for summary proceedings

35 (1) An information relating to an offence under this Schedule that is triable by a magistrates' court in England and Wales may be so tried if it is laid—

(a) at any time within three years after the commission of the offence, and

(b) within twelve months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor.

(2) Summary proceedings in Scotland for an offence under this Schedule—

(a) must not be commenced after the expiration of three years from the commission of the offence;

(b) subject to that, may be commenced at any time within twelve months after the date on which evidence sufficient in the Lord Advocate’s opinion to justify the proceedings came to the knowledge of the Lord Advocate.

Section 136(3) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date when proceedings deemed to be commenced) applies for the purposes of this sub-paragraph as for the purposes of that section.

(3) A magistrates' court in Northern Ireland has jurisdiction to hear and determine a complaint charging the commission of a summary offence under this Schedule provided that the complaint is made—

(a) within three years from the time when the offence was committed, and

(b) within twelve months from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor.

(4) For the purposes of this paragraph a certificate of the prosecutor (or, in Scotland, the Lord Advocate) as to the date on which such evidence as is referred to above came to their notice is conclusive evidence.

Liability of officers of bodies corporate etc

36 (1) If an offence under this Schedule committed by a body corporate is shown—

(a) to have been committed with the consent or the connivance of an officer of the body corporate, or

(b) to be attributable to any neglect on the part of any such officer,

the officer as well as the body corporate is guilty of an offence and liable to be proceeded against and punished accordingly.

(2) If an offence under this Schedule committed by a partnership is shown—

(a) to have been committed with the consent or the connivance of a partner, or

(b) to be attributable to any neglect on the part of a partner,

the partner as well as the partnership is guilty of an offence and liable to be proceeded against and punished accordingly.

(3) If an offence under this Schedule committed by an unincorporated association (other than a partnership) is shown—

(a) to have been committed with the consent or the connivance of an officer of the association, or

(b) to be attributable to any neglect on the part of any such officer,

the officer as well as the association is guilty of an offence and liable to be proceeded against and punished accordingly.

(4) If the affairs of a body corporate are managed by its members, sub-paragraph (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body.

(5) In this paragraph—

• “officer”—

  (a)

  in relation to a body corporate, means a director, manager, secretary, chief executive, member of the committee of management, or a person purporting to act in such a capacity, and

  (b)

  in relation to an unincorporated association, means any officer of the association or any member of its governing body, or a person purporting to act in such capacity;

• “partner” includes a person purporting to act as a partner.

Proceedings against unincorporated bodies

37 (1) Proceedings for an offence under this Schedule alleged to have been committed by a partnership or an unincorporated association must be brought in the name of the partnership or association (and not in that of its members).

(2) In proceedings for such an offence brought against a partnership or unincorporated association—

(a) section 33 of the Criminal Justice Act 1925 (c. 86) (procedure on charge of offence against corporation) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43) (corporations) apply as they do in relation to a body corporate;

(b) section 70 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (proceedings against bodies corporate) applies as it does in relation to a body corporate;

(c) section 18 of the Criminal Justice (Northern Ireland) Act 1945 (c. 15 (N.I.)) (procedure on charge) and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (corporations) apply as they do in relation to a body corporate.

(3) Rules of court relating to the service of documents have effect in relation to proceedings for an offence under this Schedule as if the partnership or association were a body corporate.

(4) A fine imposed on the partnership or association on its conviction of such an offence is to be paid out of the funds of the partnership or association.

Part 8 Supplementary and general

Report to Parliament

38 (1) As soon as reasonably practicable after the end of each calendar year, the Treasury must—

(a) prepare a report about their exercise during that year of their functions under this Schedule, and

(b) lay a copy of the report before Parliament.

(2) Sub-paragraph (1) does not apply in relation to a year if no direction under this Schedule is in force at any time in that year.

Supervision by supervisory authority

39 (1) A supervisory authority must take appropriate measures to monitor persons operating in the financial sector for whom it is the supervisory authority for the purpose of securing compliance by those persons with the requirements of any directions under this Schedule.

(2) For the purposes of this Schedule—

(a) the FSA is the supervisory authority for—

(i) credit institutions that are authorised persons;

(ii) financial institutions (except money service businesses that are not authorised persons and consumer credit financial institutions);

(b) the OFT is the supervisory authority for consumer credit financial institutions;

(c) HMRC are the supervisory authority for money service businesses that are not authorised persons;

(d) DETINI is the supervisory authority for credit unions in Northern Ireland.

(3) Where under sub-paragraph (2) there is more than one supervisory authority for a person, the authorities may agree that one of them will act as the supervisory authority for that person for the purposes of this Schedule.

(4) Where an agreement has been made under sub-paragraph (3), the authority that has agreed to act as the supervisory authority must—

(a) where directions under this Schedule have been given to specified persons operating in the financial sector, notify those persons;

(b) where such directions have been given to all persons operating in the financial sector or to a description of such persons, publish the agreement in such way as it considers appropriate.

(5) Where no agreement has been made under sub-paragraph (3), the supervisory authorities for a person must co-operate in the performance of their functions under this paragraph.

Assistance in preparing guidance

40 The Treasury must provide such assistance as may reasonably be required by a supervisory authority or other body drawing up guidance that, when issued and published with the approval of the Treasury, would be relevant guidance for the purposes of paragraph 25(3) (civil penalties) and 30(3) (offences: failure to comply with requirement imposed by direction).

Functions of Financial Services Authority

41 (1) The functions of the FSA under this Schedule shall be treated for the purposes of Parts 1, 2 and 4 of Schedule 1 to the Financial Services and Markets Act 2000 (c. 8) (general provisions relating to the Authority) as if they were functions conferred on the FSA under that Act.

(2) Any penalty under paragraph 25 (civil penalties) received by the FSA is to be applied towards expenses incurred by it in connection with its functions under this Schedule or for any incidental purpose.

Notices

42 (1) A notice under this Schedule may be given to a person—

(a) by posting it to the person’s last known address, or

(b) where the person is a body corporate, partnership or unincorporated association, by posting it to the registered or principal office of the body, partnership or association.

(2) Where the Treasury are under a duty to give a notice to a person but do not have an address for them, they must make arrangements for the notice to be given to the person at the first available opportunity.

Crown application

43 (1) This Schedule binds the Crown, subject as follows.

(2) No contravention by the Crown of a provision of this Schedule makes the Crown criminally liable.

(3) The following courts may, on the application of a person appearing to the court to have an interest, declare unlawful any act or omission of the Crown that constitutes such a contravention—

(a) the High Court in England and Wales;

(b) the Court of Session;

(c) the High Court in Northern Ireland.

(4) Nothing in this paragraph affects Her Majesty in her private capacity.

This is to be construed as if section 38(3) of the Crown Proceedings Act 1947 (c. 44) (meaning of Her Majesty in her private capacity) were contained in this Schedule.

Meaning of “United Kingdom person”

44 (1) In this Schedule “United Kingdom person” means a United Kingdom national or a body incorporated or constituted under the law of any part of the United Kingdom.

(2) For this purpose a United Kingdom national is an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;

(b) a person who under the British Nationality Act 1981 (c. 61) is a British subject; or

(c) a British protected person within the meaning of that Act.

(3) Her Majesty may by Order in Council extend the definition in sub-paragraph (1) so as to apply to bodies incorporated or constituted under the law of any of the Channel Islands, the Isle of Man or any British overseas territory.

Interpretation

45 (1) In this Schedule—

• “authorised person” means a person who is authorised for the purposes of the Financial Services and Markets Act 2000 (c. 8);

• “business relationship” means a business, professional or commercial relationship between a relevant person and a customer, which is expected by the relevant person, at the time when contact is established, to have an element of duration;

• “conduct” includes acts and omissions;

• “consumer credit financial institution” means a financial institution that under section 21 of the Consumer Credit Act 1974 (c. 39) requires a licence to carry on a consumer credit business, other than—

  (a)

  a person covered by a group licence issued by the Office of Fair Trading under section 22 of that Act,

  (b)

  a money service business, or

  (c)

  an authorised person;

• “country” includes territory;

• “document” means information recorded in any form;

• “money service business” means an undertaking which by way of business operates a currency exchange office, transmits money (or any representations of monetary value) by any means or cashes cheques which are made payable to customers;

• “notice” means a notice in writing.

(2) In this Schedule any reference to an amount in one currency includes the equivalent amount in any other currency.

(3) Unless otherwise defined, expressions used in this Schedule and in—

(a) Directive 2005/60/EC of the European Parliament and of the Council of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, or

(b) Commission Directive 2006/70/EC of 1st August 2006 laying down implementing measures for that directive,

have the same meaning as in the relevant directive.

Index of defined expressions

46 In this Schedule the following expressions are defined or otherwise explained by the provisions indicated—