ENF 2.15 The FSA's powers to enforce requirements

The FSA and its investigators may apply to a magistrate for a warrant to search for and seize documents or information. Under section 176 of the Act (Entry of premises under warrant) a justice of the peace or sheriff may issue a warrant if he is satisfied that there are reasonable grounds for believing that:

1. (1)

   a person has failed to comply with a requirement to provide information or produce documents, and that the required documents or information are on the premises specified in the warrant (see section 176(2)); or

2. (2)

   the premises specified in the warrant are those of a firm or an appointed representative; and that there are documents or information on the premises which could be the object of an information requirement; and that the requirement would not be complied with, or the documents or information would be removed, tampered with or destroyed if such a requirement were made (see section 176(3)); or

3. (3)

   a serious offence has been or is being committed; and that documents or information relevant to that offence are on the specified premises; and that an information requirement could be imposed on those documents or that information; and that the requirement would not be complied with, or the documents or information would be removed, tampered with or destroyed (see section 176(4)).

The offences relevant to sub-paragraph (3) above are those mentioned in section 168 of the Act (Appointment of persons to carry out investigations in particular cases) (see ENF 2.3.14 G), for which the maximum sentence on indictment is two years or more.

The FSA will consider using these powers to apply for a search warrant when it has concerns about whether information requirements will be complied with and it believes that the grounds listed in ENF 2.15.1 G are made out.

A search warrant issued under section 176 will authorise a constable to:

1. (1)

   Enter the premises specified in the warrant;

2. (2)

   Search the premises and take possession of documents or information relevant to the warrant, or take any other steps which may appear to be necessary to preserve them or prevent interference with them;

3. (3)

   take copies of, or extracts from, any such documents or information;

4. (4)

   require any person on the premises to explain any such document or information or to state where it may be found.

As a matter of policy, the FSA will usually seek to ensure that the FSA's investigator is named on the warrant and entitled to accompany the constable on the search.

Section 177 of the Act (Offences) creates three criminal offences in relation to non-cooperation with the FSA, information gatherers authorised by the FSA under section 165(3) of the Act, and investigators.

Under section 177(3), (4) and (6) a person commits an offence if he:

1. (1)

   knows or suspects that an investigation is being or is likely to be conducted, and:

   1. (a)

      falsifies, conceals, destroys or otherwise disposes of a document which he knows or suspects is, or would be, relevant to the investigation; or

   2. (b)

      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 (see section 177(3)); or

2. (2)

   in purported compliance with a requirement placed on him under Part XI of the Act (Information Gathering and Investigations), gives information which he knows to be false or misleading in a material particular, or recklessly gives information which is false or misleading in a material particular (see section 177(4)); or

3. (3)

   intentionally obstructs the use of any rights conferred by a warrant (see section 177(6)).

Section 177(1) states that if a person other than the investigator fails to comply with a requirement imposed on him under Part XI of the Act, the person imposing the requirement may certify that fact in writing to the court. If the court is satisfied that that person has no reasonable excuse for failing to comply, it may deal with him as if he were in contempt. If the person is a body corporate, the court may deal with any director or officer as if he were in contempt (section 177(2)).