ENF 8.10 Other powers that may be relevant

This section sets out the other powers that may be relevant when the FSA considers whether to exercise its power to make a prohibition order.

The FSA's powers to appoint investigators are set out in ENF 2 (Information gathering and investigation powers). In particular, the FSA may appoint investigators if there appear to be circumstances suggesting that:

1. (1)

   an individual is not fit and proper to be involved in the carrying out of any function in relation to a regulated activity carried on by an authorised or exempt person (section 168(4)(d) of the Act (Appointment of persons to carry out investigations in particular cases); or

2. (2)

   a person in relation to whom the FSA has given its approval under section 59 of the Act (Approval) may not be fit and proper to carry out the function to which that approval relates (section 168(4)(h) of the Act);

3. (3)

   a person may be guilty of misconduct for the purposes of section 66 of the Act (Disciplinary powers) (see section 168(4)(I) of the Act).

Section 168(2) of the Act also permits the FSA to appoint investigators to investigate unauthorised persons if it appears that:

1. (1)

   an offence has been committed under section 24(1) (False claims to be authorised or exempt) or section 397 (Misleading statements and practices) of the Act or under Part V of the Criminal Justice Act 1993 (section 168(2)(a) of the Act);

2. (2)

   there may have been a breach of the general prohibition (section 168(2)(b) of the Act);

3. (3)

   there may have been a contravention of section 21 in relation to financial promotion generally or section 238 in relation to promotion of collective investment schemes (section 168(2)(c) of the Act);

4. (4)

   market abuse may have taken place (section 168(2)(d) of the Act).

1. (1)

   Where it appears to the FSA that an approved person has been guilty of misconduct, it may consider taking disciplinary action against him under section 66 of the Act (Disciplinary powers), as well as making a prohibition order. Misconduct is defined in section 66 as a failure to comply with a Statement of Principle or being knowingly concerned in a contravention by a firm of a requirement imposed on that firm by or under the Act.

2. (2)

   When deciding whether to take disciplinary action as well as making a prohibition order, the FSA will be guided by the criteria set out in ENF 11.4 (Criteria for determining whether to take disciplinary action) and ENF 11.5 (Action against approved persons). The FSA's approach to the discipline of approved persons is set out in ENF 11 (Discipline of authorised firms and approved persons: the FSA's general approach), ENF 12 (Discipline of firms and approved persons: public censures and public statements) and ENF 13 (Discipline of firms And approved persons: financial penalties).

3. (3)

   If it appears to the FSA that the misconduct is likely to continue or that client assets are at risk as a result of the misconduct, it may consider applying for an injunction to prevent dissipation of those assets and/or to stop the misconduct continuing. The FSA's approach to the exercise of its power to apply for injunctions is set out in ENF 6.

Where the FSA has information that suggests an individual has committed an offence under the Act, or under relevant subordinate legislation, it may consider starting criminal proceedings as well as making a prohibition order against him. The FSA's policy and procedures in relation to criminal prosecutions are set out in ENF 15 (Prosecution of criminal offences).