ENF 8.11 The effect of the FSA's decision to make a prohibition order

When the FSA's decision to make a prohibition order has become effective, the individual concerned may not carry out or agree to carry out any function in breach of the prohibition order. Under section 168(4)(e) of the Act (Appointment of persons to carry out investigations in particularcircumstances), the FSA may appoint investigators if it appears there are circumstances that suggest that an individual may have carried out or agreed to carry out a function in breach of a prohibition order. An individual who performs or agrees to perform a function in breach of a prohibition order is guilty of an offence under section 56(4) of the Act (Prohibition orders)(see ENF 15 (Prosecution of criminal offences)).

The FSA may consider taking disciplinary action against a firm that has breached the provision in section 56(6) (see ENF 8.3.4 G). The FSA considers that a search by a firm of the FSA Register (see ENF 8.12.2 G) is an essential part of the statutory duty to take reasonable care to ensure that firms do not employ prohibited individuals to perform functions in relation to regulated activities. In addition, the FSA expects firms to check the FSARegister, when making applications for approval under section 59 of the Act (Approval for particular arrangements).

More generally, if a firm's search of the FSARegister reveals no record of a prohibition order, the FSA will consider taking action for breach of section 56(6) only where the firm had access to other information indicating that a prohibition order had been made.

Section 71 of the Act (Actions for damages) gives a private person (and in prescribed cases, a person who is not a private person) a right of action against firms for losses resulting from a breach by the firm of the statutory duty in section 56(6).