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Status: You are viewing the version of the handbook as on 2005-06-30.

ENF 15.4 The FSA's general approach

ENF 15.4.1G

The FSA's general policy is to pursue through the criminal justice system all those cases where criminal prosecution is appropriate. The principles the FSA will apply when it decides whether a case is appropriate for criminal prosecution are set out in ENF 15.5. When considering whether to prosecute a breach of the prescribed regulations in relation to money launderingENF 15.2.2 G (2)) the FSA will also have regard to whether the person concerned has complied with the (Guidance Notes for the Financial Sector) produced by the Joint Money Laundering Steering Group.

ENF 15.4.2G

In relation to misleading statements and practicesoffences and insider dealing, where the FSA also has power to impose a sanction for market abuse, it will decide whether to commence criminal proceedings or impose a sanction after considering the factors set out in ENF 15.5 and ENF 15.7.2 G.

ENF 15.4.3G

In cases where criminal proceedings have commenced or will be commenced, the FSA may consider whether also to take civil or regulatory action. That action might include:

  1. (1)

    injunctions (the FSA's policy and procedure in relation to the exercise of its powers to obtain injunctions against persons, whether authorised or not, is set out in ENF 6);

  2. (2)

    restitution (the FSA's policy and procedure in relation to the exercise of its power to obtain restitution against persons, whether authorised or not, is set out in ENF 9);

  3. (3)

    own-initiative action (the FSA's policy and procedure in relation to the exercise of its own-initiative powers in relation to firms is set out in ENF 3);

  4. (4)

    withdrawal of approval or cancellation of permission and withdrawal of authorisation (the FSA's policy and procedure in relation to its power to withdraw approval from approved persons is set out inENF 7 and its policy and procedure in relation to its power to cancel a firm'spermission and withdraw authorisation is set out in ENF 5);

  5. (5)

    prohibition of individuals from carrying out functions in connection with regulated activities (the FSA's policy and procedure in relation to its powers to make prohibition orders against individuals, whether authorised or not, is set out in ENF 8). The commencement of criminal proceedings against an individual (particularly where that individual is an approved person) will raise concerns in relation to that individual's fitness and propriety to perform functions in relation to regulated activities. The FSA may therefore consider making a prohibition order against him if proceedings result in a criminal conviction.

ENF 15.4.4G

When it decides whether to take any of the civil or regulatory actions set out in ENF 15.4.3 G, where criminal proceedings are in contemplation, the FSA will have regard to the following factors:

  1. (1)

    whether, in the FSA's opinion, the taking of civil or regulatory action might unfairly prejudice the prosecution, or proposed prosecution, of criminal offences;

  2. (2)

    whether, in the FSA's opinion, the taking of civil or regulatory action might unfairly prejudice the defendants in the criminal proceedings in the conduct of their defence; and

  3. (3)

    whether it is appropriate to take civil or regulatory action, having regard to the scope of the criminal proceedings and the powers available to the criminal courts.