(a) whether to impose a penalty, and

(b) the amount of a penalty.

(4) The Payment Systems Regulator must—

(a) publish the statement on its website,

(b) 5send a copy to the Treasury,

(c) review the statement from time to time and revise it if necessary (and
paragraphs (a) and (b) apply to a revision), and

(d) in applying the statement to a compliance failure, apply the version in
force when the compliance failure occurred.

67 10Warning notices

(1) Before imposing a sanction on any person the Payment Systems Regulator
must—

(a) give the person a notice in writing (a “warning notice”),

(b) give the person at least 21 days to make representations,

(c) 15consider any representations made, and

(d) as soon as is reasonably practicable, give the person a notice in writing
stating whether or not it intends to impose the sanction.

(2) In subsection (1) any reference to imposing a sanction is a reference to—

(a) publishing details under section 65(1), or

(b) 20requiring the payment of a penalty under section 66.

68 Injunctions

(1) If, on the application of the Payment Systems Regulator, the court is satisfied—

(a) that there is a reasonable likelihood that there will be a compliance
failure, or

(b) 25that there has been a compliance failure and there is a reasonable
likelihood that it will continue or be repeated,

the court may make an order restraining the conduct constituting the failure.

(2) If, on the application of the Payment Systems Regulator, the court is satisfied—

(a) that there has been a compliance failure by a participant in a regulated
30payment system, and

(b) that there are steps which could be taken for remedying the failure,

the court may make an order requiring the participant, and anyone else who
appears to have been knowingly concerned in the failure, to take such steps as
the court may direct to remedy it.

(3) 35If, on the application of the Payment Systems Regulator, the court is satisfied—

(a) that there may have been a compliance failure by a participant in a
regulated payment system, or

(b) that a person may have been knowingly concerned in a compliance
failure,

40the court may make an order restraining the participant or the person (as the
case may be) from dealing with any assets which it is satisfied the participant
or person is reasonably likely to deal with.

(4) The jurisdiction conferred by this section is exercisable—

(a) in England and Wales and Northern Ireland, by the High Court, and

(b) in Scotland, by the Court of Session.

(5) In this section—

(a) references to an order restraining anything are, in Scotland, to be read
as references to an interdict prohibiting that thing,

(b) 5references to remedying a failure include mitigating its effect, and

(c) references to dealing with assets include disposing of them.

69 Appeals: general

(1) A person who is affected by any of the following decisions of the Payment
Systems Regulator may appeal against the decision—

(a) 10a decision to give a direction under section 47 (other than a general
direction),

(b) a decision to impose a requirement under section 48 (other than a
generally-imposed requirement),

(c) a decision to exercise its power under section 49, 50 or 51,

(d) 15a decision to impose a sanction.

(2) In subsection (1) the reference to imposing a sanction is a reference to—

(a) publishing details under section 65(1), or

(b) requiring the payment of a penalty under section 66.

(3) If the decision is a CAT-appealable decision, the appeal must be made to the
20Competition Appeal Tribunal in accordance with section 70.

(4) A “CAT-appealable decision” means—

(a) a decision to give a direction under section 47,

(b) a decision to impose a requirement under section 48, or

(c) a decision to publish details under section 65(1).

(5) 25If the decision is a decision to impose a penalty on the person under section 66,
the appeal must be made to the Competition Appeal Tribunal in accordance
with section 71.

(6) If the decision is a CMA-appealable decision, the appeal must be made to the
Competition and Markets Authority (“the CMA”) in accordance with section
3072.

(7) A “CMA-appealable decision” means—

(a) a decision to impose a requirement under section 49,

(b) a decision to vary an agreement under section 50, or

(c) a decision to impose a requirement under section 51.

(8) 35The permission of the CMA is required for an appeal to be made in accordance
with section 72.

(9) The CMA may refuse permission for an appeal only if—

(a) the appeal is made for reasons that are trivial or vexatious, or

(b) the appeal has no reasonable prospect of success.

70 40Appeals to Competition Appeal Tribunal

(1) This section applies where a person is appealing to the Competition Appeal
Tribunal (“the Tribunal”) against a CAT-appealable decision.

(2) The means of making an appeal is by sending the Tribunal a notice of appeal
in accordance with Tribunal rules.

(3) The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.

(4) 5In determining an appeal made in accordance with this section, the Tribunal
must apply the same principles as would be applied by a court on an
application for judicial review.

(5) The Tribunal must either—

(a) dismiss the appeal, or

(b) 10quash the whole or part of the decision to which the appeal relates.

(6) If the Tribunal quashes the whole or part of a decision, it may refer the matter
back to the Payment Systems Regulator with a direction to reconsider and
make a new decision in accordance with its ruling.

(7) The Tribunal may not direct the Payment Systems Regulator to take any action
15which it would not otherwise have the power to take in relation to the decision.

(8) The effect of a decision to publish details under section 65(1) is suspended by
the making of an appeal against the decision (and the details may not be
published until the appeal has been determined).

(9) The effect of any other CAT-appealable decision is not suspended by the
20making of an appeal against the decision.

(10) In this section and section 71 “Tribunal rules” means rules under section 15 of
the Enterprise Act 2002.

71 Appeals in relation to penalties

(1) This section applies where a person is appealing to the Competition Appeal
25Tribunal (“the Tribunal”) against a decision to impose a penalty under section
66.

(2) The person may appeal against—

(a) the imposition of the penalty,

(b) the amount of the penalty, or

(c) 30any date by which the penalty, or any part of it, is required to be paid.

(3) The means of making an appeal is by sending the Tribunal a notice of appeal
in accordance with Tribunal rules.

(4) The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.

(5) 35The Tribunal may do any of the following—

(a) uphold the penalty;

(b) set aside the penalty;

(c) substitute for the penalty a penalty of an amount decided by the
Tribunal;

(d) 40vary any date by which the penalty, or any part of it, is required to be
paid.

(6) If an appeal is made in accordance with this section, the penalty is not required
to be paid until the appeal has been determined.

(7) Subsections (2), (5) and (6) do not restrict the power to make Tribunal rules;
and those subsections are subject to Tribunal rules.

(8) Except as provided by this section, the validity of the penalty may not be
questioned by any legal proceedings whatever.

(9) 5In the case of an appeal made in accordance with this section, a decision of the
Tribunal has the same effect as, and may be enforced in the same manner as, a
decision of the Payment Systems Regulator.

72 Appeals to Competition and Markets Authority

(1) This section applies where a person is appealing to the Competition and
10Markets Authority (“the CMA”) against a CMA-appealable decision.

(2) In determining the appeal the CMA must have regard, to the same extent as is
required of the Payment Systems Regulator, to the matters to which the
Payment Systems Regulator must have regard in discharging its functions
under this Part.

(3) 15In determining the appeal the CMA—

(a) may have regard to any matter to which the Payment Systems
Regulator was not able to have regard in relation to the decision, but

(b) must not, in the exercise of that power, have regard to any matter to
which the Payment Systems Regulator would not have been entitled to
20have regard in reaching its decision had it had the opportunity of doing
so.

(4) The CMA must either—

(a) dismiss the appeal, or

(b) quash the whole or part of the decision to which the appeal relates.

(5) 25The CMA may act as mentioned in subsection (4)(b) only to the extent that it is
satisfied that the decision was wrong on one or more of the following
grounds—

(a) that the Payment Systems Regulator failed properly to have regard to
any matter mentioned in subsection (2);

(b) 30that the Payment Systems Regulator failed to give the appropriate
weight to any matter mentioned in subsection (2);

(c) that the decision was based, wholly or partly, on an error of fact;

(d) that the decision was wrong in law.

(6) If the CMA quashes the whole or part of a decision, it may either—

(a) 35refer the matter back to the Payment Systems Regulator with a
direction to reconsider and make a new decision in accordance with its
ruling, or

(b) substitute its own decision for that of the Payment Systems Regulator.

(7) The CMA may not direct the Payment Systems Regulator to take any action
40which it would not otherwise have the power to take in relation to the decision.

(8) Schedule 5 contains further provision about the making of appeals in
accordance with this section.

73 Enforcement of requirement to dispose of interest in payment system

(1) A requirement imposed under section 51 is enforceable by civil proceedings
brought by the Payment Systems Regulator for an injunction or for interdict or
for any other appropriate relief or remedy.

(2) 5Civil proceedings may not be brought to enforce a requirement imposed under
that section unless—

(a) the time for bringing an appeal against the decision to impose the
requirement has expired and no appeal has been brought within that
time, or

(b) 10the person on whom the requirement was imposed has within that time
brought such an appeal and the appeal has been dismissed or
withdrawn.

Information and investigation powers

74 Power to obtain information or documents

(1) 15The Payment Systems Regulator may by notice in writing require a person to
provide information or documents—

(a) which the Payment Systems Regulator thinks will help the Treasury in
determining whether to make a designation order, or

(b) which the Payment Systems Regulator otherwise requires in
20connection with its functions under this Part.

(2) In particular, a notice under subsection (1) may require a participant in a
regulated payment system to notify the Payment Systems Regulator if events
of a specified kind occur.

(3) A notice under subsection (1) may require information or documents to be
25provided—

(a) in a specified form or manner;

(b) at a specified time;

(c) in respect of a specified period.

75 Reports by skilled persons

(1) 30The Payment Systems Regulator may—

(a) require a person who is a participant in a regulated payment system to
provide the Payment Systems Regulator with a report on any matter
relating to the person’s participation in the system (“the matter
concerned”), or

(b) 35appoint a person to provide the Payment Systems Regulator with a
report on the matter concerned.

The person whose participation in the payment system is to be the subject of
the report is referred to in this section as “the relevant participant”.

(2) The power conferred by subsection (1)(a) is exercisable by giving the relevant
40participant a notice in writing.

(3) When acting under subsection (1)(a), the Payment Systems Regulator may
require the report to be in a form specified in the notice.

(4) The Payment Systems Regulator must give written notice of an appointment
under subsection (1)(b) to the relevant participant.

(5) A person appointed to make a report under this section—

(a) must be a person appearing to the Payment Systems Regulator to have
5the skills necessary to make a report on the matter concerned, and

(b) where the appointment is to be made by the relevant participant, must
be a person nominated or approved by the Payment Systems
Regulator.

(6) It is the duty of—

(a) 10the relevant participant, and

(b) any person who is providing (or who has at any time provided)
services to the relevant participant in relation to the matter concerned,

to give the person appointed to prepare a report all such assistance as the
appointed person may reasonably require.

(7) 15The obligation imposed by subsection (6) is enforceable, on the application of
the Payment Systems Regulator, by an injunction or, in Scotland, by an order
for specific performance under section 45 of the Court of Session Act 1988.

(8) The Payment Systems Regulator may direct the relevant participant to pay any
expenses incurred by the Payment Systems Regulator in relation to an
20appointment under subsection (1)(b).

76 Appointment of persons to conduct investigations

(1) If it considers that it is desirable to do so in order to advance any of its payment
systems objectives, the Payment Systems Regulator may appoint one or more
competent persons to conduct an investigation on its behalf into the nature,
25conduct or state of the business of any participant in a regulated payment
system.

(2) If it appears to the Payment Systems Regulator that there are circumstances
suggesting that there may have been a compliance failure, the Payment
Systems Regulator may appoint one or more competent persons to conduct an
30investigation on its behalf.

77 Investigations: general

(1) This section applies if the Payment Systems Regulator appoints one or more
competent persons (“investigators”) under section 76 to conduct an
investigation on its behalf.

(2) 35The Payment Systems Regulator must give written notice of the appointment
of an investigator to the person who is the subject of the investigation.

(3) Subsections (2) and (9) do not apply if—

(a) the Payment Systems Regulator believes that the notice required by
subsection (2) or (9) would be likely to result in the investigation being
40frustrated, or

(b) the investigator is appointed under subsection (2) of section 76.

(4) A notice under subsection (2) must—

(a) specify the provision under which the investigator was appointed, and

(b) state the reason for the appointment.

(5) Nothing prevents the Payment Systems Regulator from appointing as an
investigator—

(a) a member of its staff, or

(b) a member of staff of the FCA.

(6) 5An investigator who conducts an investigation must make a report of the
investigation to the Payment Systems Regulator.

(7) The Payment Systems Regulator may, by a direction to an investigator,
control—

(a) the scope of the investigation,

(b) 10the period during which the investigation is to be conducted,

(c) the conduct of the investigation, and

(d) the reporting of the investigation.

(8) A direction may, in particular—

(a) confine the investigation to particular matters;

(b) 15extend the investigation to additional matters;

(c) require the investigator to discontinue the investigation or to take only
those steps that are specified in the direction;

(d) require the investigator to make such interim reports as are so
specified.

(9) 20If there is a change in the scope or conduct of the investigation and, in the
opinion of the Payment Systems Regulator, the person who is the subject of the
investigation is likely to be significantly prejudiced by not being made aware
of it, that person must be given written notice of the change.

78 Powers of persons appointed under section 76

(1) 25An investigator may require any person within subsection (2)—

(a) to attend before the investigator at a specified time and place and
answer questions, or

(b) otherwise to provide any information which the investigator requires.

(2) The persons referred to in subsection (1) are—

(a) 30the person who is the subject of the investigation (“the person under
investigation”);

(b) any person connected with the person under investigation;

(c) in the case of an investigation into whether there has been a compliance
failure, any person who in the investigator’s opinion is or may be able
35to give information which is or may be relevant to the investigation.

(3) An investigator may also require any person to produce at a specified time and
place any specified documents or documents of a specified description.

(4) A requirement under subsection (1) or (3) may be imposed only so far as the
investigator concerned reasonably considers the question, provision of
40information or production of the document to be relevant to the purposes of
the investigation.

(5) In the case of an investigation into whether there has been a compliance failure,
the investigator may also require any person falling within subsection (2)(c) to
give the investigator all assistance in connection with the investigation which
45the person is reasonably able to give.

(6) For the purposes of this section, a person is connected with the person under
investigation (“A”) if the person is or has at any relevant time been—

(a) a member of A’s group,

(b) a controller of A, or

(c) 5a partnership of which A is a member.

(7) In this section—

• “controller” has the same meaning as in FSMA 2000 (see section 422 of that
  Act);

• “group” has the same meaning as in FSMA 2000 (see section 421 of that
  10Act);

• “investigator” means a person conducting an investigation under section
  76;

• “specified” means specified in a notice in writing.

79 Information and documents: supplemental provisions

(1) 15In this section “relevant document” means a document produced in response
to a requirement imposed under section 74 or 78.

(2) In a case where—

(a) the Payment Systems Regulator has power under section 74, or an
investigator has power under section 78, to require a person to produce
20a document, but

(b) it appears that the document is in the possession of another person,

the power may be exercised in relation to that other person.

(3) Any person to whom a relevant document is produced may—

(a) take copies or extracts from the document, or

(b) 25require the person producing the document, or any relevant person
(see subsection (4)), to provide an explanation of the document.

(4) “Relevant person”, in relation to a person who is required to produce a
document, means a person who—

(a) has been or is or is proposed to be a director or controller of that person,

(b) 30has been or is an auditor of that person,

(c) has been or is an actuary, accountant or lawyer appointed or instructed
by that person, or

(d) has been or is an employee of that person.

(5) A relevant document may be retained for so long as the person to whom it is
35produced considers that it is necessary to retain it (rather than copies of it) for
the purposes for which the document was requested.

(6) If the person to whom a relevant document is produced has reasonable
grounds for believing—

(a) that the document may have to be produced for the purposes of any
40legal proceedings, and

(b) that it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

(7) If a person who is required under section 74 or 78 to produce a document fails
to do so, the Payment Systems Regulator or an investigator may require the

person to state, to the best of the person’s knowledge and belief, where the
document is.

(8) A lawyer may be required under section 74 or 78 or this section to provide the
name and address of a client.

(9) 5A person may not be required under section 74 or 78 or this section to disclose
information or produce a document in respect of which the person owes an
obligation of confidence as a result of carrying on the business of banking
unless—

(a) the person is the person under investigation or a member of that
10person’s group,

(b) the person to whom the obligation of confidence is owed is the person
under investigation or a member of that person’s group,

(c) the person to whom the obligation of confidence is owed consents to
the disclosure or production, or

(d) 15the imposing on the person of a requirement with respect to such
information or document has been specifically authorised by the
Payment Systems Regulator.

(10) If a person claims a lien on a document, its production under section 74 or 78
does not affect the lien.

(11) 20In this section—

• “controller” has the same meaning as in FSMA 2000 (see section 422 of that
  Act);

• “group” has the same meaning as in FSMA 2000 (see section 421 of that
  Act);

• 25“investigator” means a person appointed under section 76.

80 Admissibility of statements made to investigators

(1) A statement made to an investigator by a person in compliance with an
information requirement is admissible in evidence in any proceedings, so long
as it also complies with any requirements governing the admissibility of
30evidence in the circumstances in question.

(2) But in criminal proceedings in which that person is charged with an offence to
which this subsection applies—

(a) no evidence relating to the statement may be adduced by or on behalf
of the prosecution, and

(b) 35no question relating to the statement may be asked by or on behalf of
the prosecution,

unless evidence relating to the statement is adduced, or a question relating to
it is asked, in the proceedings by or on behalf of that person.

(3) Subsection (2) applies to any offence other than—

(a) 40an offence under section 83(6);

(b) an offence under section 5 of the Perjury Act 1911 (false statements
made otherwise than on oath);

(c) an offence under section 44(2) of the Criminal Law (Consolidation)
(Scotland) Act 1995 (false statements made otherwise than on oath);

(d) 45an offence under Article 10 of the Perjury (Northern Ireland) Order
1979.

(4) In this section—

• “information requirement” means a requirement imposed by an
  investigator under section 78 or 79;

• “investigator” means a person appointed under section 76.

81 5Entry of premises under warrant

(1) A justice of the peace may issue a warrant under this section if satisfied on
information on oath given by or on behalf of the Payment Systems Regulator
or an investigator that there are reasonable grounds for believing that the first
or second set of conditions is satisfied.

(2) 10The first set of conditions is—

(a) that a person on whom an information requirement has been imposed
has failed (wholly or in part) to comply with it, and

(b) that on the premises specified in the warrant—

(i) there are documents which have been required, or

(ii) 15there is information which has been required.

(3) In this section “information requirement” means—

(a) a requirement imposed by the Payment Systems Regulator under
section 74 or 79, or

(b) a requirement imposed by an investigator under section 78 or 79.

(4) 20The second set of conditions is—

(a) that the premises specified in the warrant are premises of a participant
in a regulated payment system,

(b) that there are on the premises documents or information in relation to
which an information requirement could be imposed, and

(c) 25that if such a requirement were to be imposed—

(i) it would not be complied with, or

(ii) the documents or information to which it related would be
removed, tampered with or destroyed.

(5) A warrant under this section authorises a constable—

(a) 30to enter the premises specified in the warrant,

(b) to search the premises and take possession of any documents or
information appearing to be documents or information of a kind in
respect of which a warrant under this section was issued (“the relevant
kind”) or to take, in relation to any such documents or information, any
35other steps which may appear to be necessary for preserving them or
preventing interference with them,

(c) to take copies of, or extracts from, any documents or information
appearing to be of the relevant kind,

(d) to require any person on the premises to provide an explanation of any
40document or information appearing to be of the relevant kind or to
state where it may be found, and

(e) to use such force as may be reasonably necessary.

(6) A warrant under this section may be executed by any constable.

(7) The warrant may authorise persons to accompany any constable who is
45executing it.