House of Commons Amendments

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

41

(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

(appointment by FSA of persons to carry out investigation), after

paragraph (b) insert—

“(ba)
a person may be guilty of an offence under Schedule

(Terrorist financing and money laundering) 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

42

(c)
Schedule (Terrorist financing and money laundering) 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.

43

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 (corporations) apply as they do in

relation to a body corporate;

44

(b)
section 70 of the Criminal Procedure (Scotland) Act 1995

(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

(procedure on charge) and Schedule 4 to the Magistrates' Courts

(Northern Ireland) Order 1981 (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.

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      (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;

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(c)
the High Court in Northern Ireland.

      (4)
Nothing in this section 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 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—

47

(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—

authorised person
paragraph 45(1)

the banking consolidation
paragraph 7

directive (in Part 2 of this

Schedule)

biological weapon
paragraph 2(6)

business relationship
paragraph 45(1)

chemical weapon
paragraph 2(5)

conduct
paragraph 45(1)

consumer credit financial
paragraph 45(1)

institution

country
paragraph 45(1)

credit institution
paragraph 5(1)

customer due diligence measures
paragraph 10(3)

designated person, in relation to
paragraph 9(3)

a direction

DETINI
paragraph 18(1)(d)

document
paragraph 45(1)

enforcement authority
paragraph 18(1)

enforcement officer (in Part 5 of
paragraph 18(2)

this Schedule)

financial institution
paragraph 5(2)

the FSA
paragraph 18(1)(a)

HMRC
paragraph 18(1)(b)

the life assurance consolidation
paragraph 7

directive (in Part 2 of this

Schedule)

local enforcement officer (in Part
paragraph 18(3)

5 of this Schedule)

the markets in financial
paragraph 7

instruments directive (in Part 2 of

this Schedule)

money laundering
paragraph 2(2)

money service business
paragraph 45(1)

notice
paragraph 45(1)

nuclear weapon
paragraph 2(3)

the OFT
paragraph 18(1)(c)

persons operating in the financial
paragraph 4

sector

radiological weapon
paragraph 2(4)

relevant person, in relation to a
paragraph 3(2)

direction

supervisory authority
paragraph 39(2)

terrorist financing
paragraph 2(1)

United Kingdom person
paragraph 44”