1This manual (DEPP) is relevant to firms, approved persons and other persons, whether or not they are regulated by the FSA. It sets out:

1. (1)

   the FSA's decision-making procedure for giving statutory notices. These are warning notices, decision notices and supervisory notices (DEPP 1.2 to DEPP 5);

2. (2)

   the FSA's policy with respect to the imposition and amount of penalties under the Act (see DEPP 6);

3. (3)

   the FSA's policy with respect to the conduct of interviews by investigators appointed in response to a request from an overseas regulator (DEPP 7).

The purpose of DEPP is to satisfy the requirements of sections 69(1), 93(1), 124(1), 169(7), 210(1) and 395 of the Act that the FSA publish the statements of procedure or policy referred to in DEPP 1.1.1 G.

Section 395 of the Act (The FSA's procedures) requires the FSA to publish a statement of its procedure for the giving of statutory notices. The procedure must be designed to secure, among other things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not directly involved in establishing the evidence on which that decision is based. The types of statutory notices and related notices, and the principal references to them in the Act and DEPP are set out in DEPP 1.2.2 G.

In DEPP the supervisory notice about a matter first given to the recipient is referred to as the "first supervisory notice" and the supervisory notice given after consideration of any representations is referred to as the "second supervisory notice".

The requirement in section 395 of the Act to publish a procedure for the giving of notices does not extend to the giving of a notice of discontinuance or a final notice. Neither of these notices is a statutory notice for the purposes of DEPP; nor is the decision to give such a notice a statutory notice associated decision.

Decisions on whether to give a statutory notice will be taken by a 'decision maker'. The FSA's assessment of who is the appropriate decision maker is subject to the requirements of section 395 of the Act and will depend upon the nature of the decision, including its complexity, importance and urgency. References to the 'decision maker' in DEPP are to:

1. (1)

   the Regulatory Decisions Committee (RDC); or

2. (2)

   FSA staff under executive procedures; or

3. (3)

   FSA staff under the settlement decision procedure.

The decision maker will also take decisions associated with a statutory notice (a 'statutory notice associated decision'). Statutory notice associated decisions include decisions:

1. (1)

   to set or extend the period for making representations;

2. (2)

   on whether the FSA is required to give a copy of the statutory notice to any third party and, if so, the period for the third party to make representations; and

3. (3)

   on whether to refuse access to FSA material, relevant to the relevant statutory notice, under section 394 of the Act.

In each case, the decision maker will make decisions by applying the relevant statutory tests, having regard to the context and nature of the matter, that is, the relevant facts, law, and FSA priorities and policies (including on matters of legal interpretation).

The FSA will make and retain appropriate records of those decisions, including records of meetings and the representations (if any) and materials considered by the decision makers.

DEPP 2 to DEPP 5 set out:

1. (1)

   which decisions require the giving of statutory notices and who takes them (DEPP 2);

2. (2)

   the nature and procedures of the RDC (DEPP 3);

3. (3)

   the procedure for decision making by FSA staff under executive procedures (DEPP 4);

4. (4)

   the procedure for decision making by FSA staff under the settlement decision procedure (DEPP 5).