Financial Services and Markets Bill

Financial Services and Markets Bill - continued	House of Commons
PART X, INFORMATION GATHERING AND INVESTIGATIONS - continued

back to previous text


	Conduct of investigations
Investigations: general.	140. - (1) This section applies if-
	(a) the Authority appoints one or more competent persons ("investigators") under section 137 or 138(3) to conduct an investigation on its behalf;
	(b) the Secretary of State appoints one or more competent persons ("investigators") under section 137 or 138(4) to conduct an investigation on his behalf.
	(2) The investigating authority must give written notice of the appointment of an investigator to the person who is the subject of the investigation ("the person under investigation").
	(3) Subsections (2) and (9) do not apply if the investigator is appointed by the investigating authority as a result of the suspicion mentioned in section 138(2).
	(4) A notice under subsection (2) must-
	(a) specify the provisions under which, and as a result of which, the investigator was appointed; and
	(b) state the reason for his appointment.
	(5) Nothing prevents the investigating authority from appointing a person who is a member of its staff as an investigator.
	(6) An investigator must make a report of his investigation to the investigating authority unless otherwise directed by that authority.
	(7) The investigating authority may, by a direction to an investigator, control-
	(a) the scope of the investigation;
	(b) the 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) extend the investigation to additional matters;
	(c) require the investigator to discontinue the investigation or to take only such steps as are specified in the direction;
	(d) require the investigator to make such interim reports as are so specified;
	(e) require the investigator not to make a report of the investigation.
	(9) Notice of a direction must be given to the person under investigation by the investigating authority.
	(10) "Investigating authority", in relation to an investigator, means-
	(a) the Authority, if the Authority appointed him;
	(b) the Secretary of State, if the Secretary of State appointed him.
Powers of persons appointed under section 137.	141. - (1) An investigator may require the person who is the subject of the investigation ("the person under investigation") or any person connected with the person under investigation-
	(a) to attend before the investigator at a specified time and place and answer questions; or
	(b) otherwise to provide such information as the investigator may require for the purposes of the investigation.
	(2) An investigator may also require any person to produce at a specified time and place any specified documents or documents of a specified description which appear to the investigator to relate to any matter relevant to the investigation.
	(3) A requirement under subsection (1) or (2) may be imposed only so far as the investigator concerned reasonably considers the question, provision of information or production of the document to be relevant to the purposes of the investigation.
	(4) For the purposes of this section and section 142, a person is connected with the person under investigation ("A") if he is or has at any relevant time been-
	(a) a member of A's group;
	(b) a controller of A;
	(c) a partnership of which A is a member; or
	(d) in relation to A, a person mentioned in Part I or II of Schedule 12.
	(5) "Investigator" means a person conducting an investigation under section 137.
	(6) "Specified" means specified in a notice in writing.
Additional power of persons appointed as a result of section 138(1).	142. - (1) An investigator has the powers conferred by section 141.
	(2) An investigator may also require a person who is neither the subject of the investigation ("the person under investigation") nor a person connected with the person under investigation-
	(a) to attend before the investigator at a specified time and place and answer questions; or
	(b) otherwise to provide such information as the investigator may require for the purposes of the investigation.
	(3) A requirement may only be imposed under subsection (2) if the investigator is satisfied that the requirement is necessary or expedient for the purposes of the investigation.
	(4) "Investigator" means a person appointed under subsection (3) or (4) of section 138 (so far as relating to subsection (1) of that section).
	(5) "Specified" means specified in a notice in writing.
Powers of person appointed to investigate as a result of section 138(2).	143. - (1) Subsections (2) to (4) apply if an investigator considers that any person ("A") is or may be able to give information which is relevant to the investigation.
	(2) The investigator may require A-
	(a) to attend before him at a specified time and place and answer questions; or
	(b) otherwise to provide such information as he may require for the purposes of the investigation.
	(3) The investigator may also require A to produce at a specified time and place any specified documents or documents of a specified description which appear to the investigator to relate to any matter relevant to the investigation.
	(4) The investigator may also otherwise require A to give him all assistance in connection with the investigation which A is reasonably able to give.
	(5) "Investigator" means a person appointed under subsection (3) or (4) of section 138 (so far as relating to subsection (2) of that section).
Admissibility of statements made to investigators.	144. - (1) A statement made to an investigator by a person in compliance with an information requirement is admissible in evidence in any proceedings.
	(2) But in criminal proceedings in which that person is charged with an offence to which this subsection applies or in proceedings in relation to a penalty imposed under Part VII-
	(a) no evidence relating to the statement may be adduced, and
	(b) no question relating to it may be asked,
	by or on behalf of the prosecution or (as the case may be) the Authority, unless evidence relating to it 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 one-
	(a) under section 147(4);
	(b) under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath);
	(c) under section 44(2) of the Criminal Law (Consolidation)(Scotland) Act 1995 (false statements made otherwise than on oath); or
	(d) under Article 10 of the Perjury (Northern Ireland) Order 1979.
	(4) "Investigator" means a person appointed under section 137 or 138(3) or (4).
	(5) "Information requirement" means a requirement imposed by an investigator under section 141, 142, 143 or 145.
Information and documents: supplemental provisions.	145. - (1) If the Authority or an investigator has power under this Part to require a person to produce a document but it appears that the document is in the possession of a third person, that power may be exercised in relation to the third person.
	(2) If a document is produced in response to a requirement imposed under this Part, the person to whom it is produced may-
	(a) take copies or extracts from the document; or
	(b) require the person producing the document, or any relevant person, to provide an explanation of the document.
	(3) If a person who is required under this Part to produce a document fails to do so, the Authority or an investigator may require him to state, to the best of his knowledge and belief, where the document is.
	(4) No person may be required under this Part to produce or disclose a privileged communication.
	(5) But a lawyer may be required to furnish the name and address of his client.
	(6) No person may be required under this Part to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless-
	(a) he is the person under investigation or a related company;
	(b) the person to whom the obligation of confidence is owed is the person under investigation or a related company;
	(c) the person to whom the obligation of confidence is owed consents to the disclosure or production; or
	(d) the imposing on him of a requirement with respect to such information or document has been specifically authorised by the investigating authority.
	(7) If a person claims a lien on a document, its production under this Part does not affect the lien.
	(8) "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) has been or is an auditor of that person; or
	(c) has been or is an employee of that person.
	(9) "Investigator" means a person appointed under section 137 or 138(3) or (4).
Entry of premises under warrant.	146. - (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 Secretary of State, the Authority or an investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.
	(2) The 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 there are on the premises specified in the warrant documents which have, or information which has, been required.
	(3) The second set of conditions is-
	(a) that the premises specified in the warrant are premises of an authorised person or an appointed representative;
	(b) that there are on the premises documents or information in relation to which an information requirement could be imposed; and
	(c) that 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.
	(4) The third set of conditions is-
	(a) that an offence under this Act for which the maximum sentence on conviction on indictment is two years or more has been (or is being) committed by any person;
	(b) that there are on the premises specified in the warrant documents or information relevant to whether that offence has been (or is being) committed;
	(c) that an information requirement could be imposed in relation to those documents or information; and
	(d) that 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 shall authorise a constable-
	(a) to 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 other 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; and
	(d) to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found.
	(6) Any document of which possession is taken under this section may be retained-
	(a) for a period of three months; or
	(b) if within that period proceedings to which the document is relevant are commenced against any person for any criminal offence, until the conclusion of those proceedings.
	(7) In the application of this section to Scotland-
	(a) for the references to a justice of the peace substitute references to a justice of the peace or a sheriff; and
	(b) for the references to information on oath substitute references to evidence on oath.
	(8) "Investigator" means a person appointed under section 137 or 138(3) or (4).
	(9) "Information requirement" means a requirement imposed-
	(a) by the Authority under section 135 or 145; or
	(b) by an investigator under section 141, 142, 143 or 145.
	Offences
Offences.	147. - (1) A person who fails, without reasonable excuse, to comply with a requirement imposed on him under this Part is guilty of an offence.
	(2) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
	(3) A person who knows or suspects that an investigation is being or is likely to be conducted under this Part is guilty of an offence if-
	(a) he falsifies, conceals, destroys or otherwise disposes of a document which he knows or suspects is or would be relevant to such an investigation, or
	(b) he causes or permits the falsification, concealment, destruction or disposal of such a document,
	unless he shows that he had no intention of concealing facts disclosed by the documents from the investigator.
	(4) A person who, in purported compliance with a requirement imposed on him under this Part-
	(a) provides information which he knows to be false or misleading in a material particular, or
	(b) recklessly provides information which is false or misleading in a material particular,
	is guilty of an offence.
	(5) A person guilty of an offence under subsection (3) or (4) is liable-
	(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;
	(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
	(6) Any person who intentionally obstructs the exercise of any rights conferred by a warrant under section 146 is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.

Prepared 18 November 1999