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PART X |
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INFORMATION GATHERING AND INVESTIGATIONS |
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Powers to gather information |
| Authority's power to require information. |
135. - (1) The Authority may, by notice in writing given to an authorised person, require him-
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(a) to provide specified information or information of a specified description; or |
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(b) to produce specified documents or documents of a specified description. |
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(2) The information or documents must be provided or produced-
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(a) before the end of such reasonable period as may be specified; and |
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(b) at such place as may be specified. |
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(3) An officer who has written authorisation from the Authority to do so may require an authorised person without delay-
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(a) to provide the officer with specified information or information of a specified description; or |
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(b) to produce to him specified documents or documents of a specified description. |
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(4) This section applies only to information and documents reasonably required in connection with the exercise by the Authority of functions conferred on it by or under this Act.
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(5) The Authority may require any information provided under this section to be provided in such form as it may reasonably require.
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(6) The Authority may require-
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(a) any information provided, whether in a document or otherwise, to be verified in such manner, or |
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(b) any document produced to be authenticated in such manner, |
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as it may reasonably require.
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(7) The powers conferred by subsections (1) and (3) may also be exercised to impose requirements on-
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(a) a person who is connected with an authorised person; |
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(b) a recognised investment exchange or recognised clearing house. |
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(8) "Authorised person" includes a person who was at any time an authorised person but who has ceased to be an authorised person.
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(9) "Officer" means an officer of the Authority and includes a member of the Authority's staff or an agent of the Authority.
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(10) "Specified" means-
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(a) in subsections (1) and (2), specified in the notice; and |
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(b) in subsection (3), specified in the authorisation. |
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(11) For the purposes of this section, a person is connected with an authorised person ("A") if he is or has at any relevant time been-
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(a) a member of A's group; |
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(c) a partnership of which A is a member; or |
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(d) in relation to A, a person mentioned in Part I of Schedule 12. |
| Reports by skilled persons. |
136. - (1) The Authority may, by notice in writing given to a person to whom subsection (2) applies, require him to provide the Authority with a report on any matter about which the Authority has required or could require the provision of information or production of documents under section 135.
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(2) This subsection applies to-
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(a) an authorised person ("A"), |
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(b) any other member of A's group, |
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(c) a partnership of which A is a member, or |
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(d) a person who has at any relevant time been a person falling within paragraph (a), (b) or (c), |
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who is, or was at the relevant time, carrying on a business.
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(3) The Authority may require the report to be in such form as may be specified in the notice.
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(4) The person appointed to make a report required by subsection (1) must be a person-
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(a) nominated or approved by the Authority; and |
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(b) appearing to the Authority to have the skills necessary to make a report on the matter concerned. |
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(5) It is the duty of any person who is providing (or who at any time has provided) services to a person to whom subsection (2) applies in relation to a matter on which a report is required under subsection (1) to give a person appointed to provide such a report all such assistance as the appointed person may reasonably require.
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(6) The obligation imposed by subsection (5) is enforceable, on the application of the Authority, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.
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Appointment of investigators |
| Appointment of persons to carry out general investigations. |
137. - (1) If it appears to the Authority or the Secretary of State ("the investigating authority") that there is good reason for doing so, the investigating authority may appoint one or more competent persons to conduct an investigation on its behalf into-
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(a) the nature, conduct or state of the business of an authorised person or of an appointed representative; |
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(b) a particular aspect of that business; or |
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(c) the ownership or control of an authorised person. |
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(2) If a person appointed under subsection (1) thinks it necessary for the purposes of his investigation, he may also investigate the business of a person who is or has at any relevant time been-
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(a) a member of the group of which the person under investigation ("A") is part; or |
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(b) a partnership of which A is a member. |
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(3) If a person appointed under subsection (1) decides to investigate the business of any person under subsection (2) he must give that person written notice of his decision.
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(4) The power conferred by this section may be exercised in relation to a former authorised person (or appointed representative) but only in relation to-
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(a) business carried on at any time when he was an authorised person (or appointed representative); or |
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(b) the ownership or control of a former authorised person at any time when he was an authorised person. |
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(5) "Business" includes any part of the business of an authorised person including a part which does not consist of carrying out regulated activities.
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| Appointment of persons to carry out investigations in particular cases. |
138. - (1) Subsection (3) applies if the Authority has reasonable grounds for suspecting that-
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(a) a person may have contravened section 17 or 53(2); |
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(b) a person may have contravened any regulation made under section 113; |
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(c) a person may be guilty of an offence under section 21(1), 22(1), 23(1), 53(4), 147, 160, 303 or 342(1) or under Schedule 4; |
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(d) a person may be guilty of a related offence; |
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(e) a person may be guilty of an offence mentioned in paragraph (c) or (d) as a result of section 343; |
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(f) an authorised person may have contravened a rule made by the Authority; |
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(g) an individual is not a fit and proper person to be involved in the discharge of any function in relation to a regulated activity carried on by an authorised or exempt person; |
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(h) an individual may have failed to comply with a statement of principle issued under section 61; or |
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(i) an individual may, under an arrangement made in relation to a regulated activity carried on by an authorised person, have been concerned in a contravention by the authorised person of a relevant requirement. |
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(2) Subsection (3) also applies if the Authority has reasonable grounds for suspecting that-
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(a) an offence under section 341 or under Part V of the Criminal Justice Act 1993 may have been committed; or |
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(b) market abuse may have taken place. |
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(3) The Authority may appoint one or more competent persons to conduct an investigation on its behalf.
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(4) If the Secretary of State has reasonable grounds for such a suspicion as is mentioned in any of paragraphs (a), (b), (c) or (e) (so far as that paragraph relates to paragraph (c)) of subsection (1) or in subsection (2), he may appoint one or more competent persons to conduct an investigation on his behalf.
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(5) "Related offence" means an offence under any enactment other than this Act-
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(a) which the Authority has power to prosecute under this Act; but |
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(b) which it would not otherwise have power to investigate. |
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(6) "Arrangement" has the same meaning as in section 56.
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(7) "Relevant requirement" means-
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(a) a requirement imposed by or under this Act; and |
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(b) a requirement which is imposed by or under any other Act and whose contravention constitutes an offence which the Authority has power to prosecute under this Act. |
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Assistance to overseas regulators |
| Investigations etc in support of overseas regulator. |
139. - (1) At the request of an overseas regulator, the Authority may-
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(a) exercise the power conferred by section 135; or |
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(b) appoint a person to investigate any matter. |
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(2) An investigator has the same powers as an investigator appointed under section 138(3) (so far as relating to subsection (1) of that section).
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(3) If the request has been made by a competent authority in pursuance of any of the single market directives the Authority must, in deciding whether or not to exercise its investigative power, consider whether its exercise is necessary to comply with any such directive.
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(4) In deciding whether or not to exercise its investigative power, the Authority may take into account in particular-
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(a) whether in the country or territory of the overseas regulator concerned, corresponding assistance would be given to a United Kingdom regulatory authority; |
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(b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom; |
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(c) the seriousness of the case and its importance to persons in the United Kingdom; |
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(d) whether it is otherwise appropriate in the public interest to give the assistance sought. |
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(5) The Authority may decide that it will not exercise its investigative power unless the overseas regulator undertakes to make such contribution towards the cost of its exercise as the Authority considers appropriate.
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(6) Subsections (4) and (5) do not apply if the Authority considers that the exercise of its investigative power is necessary to comply with a single market directive.
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(7) If the Authority has appointed an investigator in response to a request from an overseas regulator, it may direct the investigator to permit a representative of that regulator to attend, and take part in, any interview conducted for the purposes of the investigation.
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(8) A direction under subsection (7) is not to be given unless the Authority is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to safeguards equivalent to those contained in Part XXI.
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(9) The Authority must prepare a statement of its policy with respect to the conduct of interviews in relation to which a direction under subsection (7) has been given.
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(10) The statement requires the approval of the Treasury.
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(11) If the Treasury approve the statement, the Authority must publish it.
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(12) No direction may be given under subsection (7) before the statement has been published.
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(13) "Overseas regulator" has the same meaning as in section 164.
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(14) "Investigative power" means one of the powers mentioned in subsection (1).
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(15) "Investigator" means a person appointed under subsection (1)(b).
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