This report advises Financial Institutions importance of the principals and guidelines of the Financial Services Authority (FSA) and as a legal advisor at Peter Bloomfield. The report will look at how companies, employees and managers are approved in accordance to advising regulated activities, how companies have responsibilities if they fail to comply with the laws and regulations set and what appropriate action is required to the set FSA guidelines. The FSA is an independent non-governmental body who are limited by guarantee and financed by the financial services industry. The FSA have statutory powers under the Financial Services and Markets Act 2000 (FSMA 2000). The UK Treasury appoints the FSA board consisting of an appointed Chairperson, Chief Executive Officers, two Managing Directors, and eleven Non-Executive Directors including a lead Non-Executive Member who takes responsibility as a Deputy Chairman. The FSA are given a wide range of rulemaking, investigatory and enforcement powers in order to towards four statutory objectives: Market Confidence – maintaining confidence in the financial system. Financial Stability – contributing to the protection and the enhancement of the UK financial system. Consumer Protection – securing the appropriate degree of protection for consumers Reduction of Financial Crime – reducing to the extent to which it is possible for a business to be used for a purpose connected with financial crime. The FSMA 2000 is supported by a set of principles for good regulation. Efficiency and Economy – the need to use resources in the most efficient way. Role of Management – the company’s senior managers are responsible for activities and for ensuring that its business complies with regulatory requirements. Proportionality – the restriction the FSA – impose on industry must be proportionate to the benefits that are expected to result from those restrictions. Innovation – to carry innovative measures when regulating activities International character – including the desirability of maintaining the competitive position of the UK Competition – the need to minimise the adverse effect on competition that may arise from the FSA’s activity and the desirability of facilitating competition between the companies it regulates. The FSA has an organised high level qualification process for companies and persons in the industry to be approved.
High standard levels are applicable to all companies firms and approved persons that are approved by the company to give advice and practice. The company must meet and adhere to the following threshold conditions. Legal status of the firm – Firms must be a body corporate or a partnership not a limited liability partnership. The head office must be located and registered in the UK. For the insurance of motor vehicles’ the firm must have an appointed claims represented in each EEA states other than the UK. If a firm has close links with other firms then FSA must be satisfied that those links are not likely to prevent the firm’s supervision by the FSA. The FSA should take into account whether it is likely that it will receive adequate information from the firm and the persons with the firm have close links. The firms resources need to be adequate to carry out regulated activities, FSA take into account membership of which the firm may belong to and the sort of provisions made as a member of the group in respect of liabilities. Suitability of the firm, is the suitable for regulated activities? Whether the employees of the firm are suitable under the approved persons test. The firms suitability depends on whether the firm: Will conduct business with integrity and compliance of proper standards. Work competently. Can demonstrate that it will conduct its affairs with expertise, due skill, care and vigilance. If a firm fails or is failing to satisfy these conditions then the FSA may exercise its own principle power under section 45 and can cancel the permission of the firm for regulated activities. The FSA encourages firms to take reasonable care to effectively follow and plan the FSA rule book in the firm’s activities. It is the firm’s obligation to take responsibility to maintain appropriate systems and to control the daily business appropriately of mitigating the risk involved in dealing with transactions and policies. A firm must take reasonable care to establish and maintain systems and controls appropriate to the scale, nature complexity of its business. “The rulebook of the FSA spans an enormous gamut from issues of strategic, overarching significance, such as solvency margins, to matters of fine detail, such as the nature of wording of individual advertisements” (Ennew, 2007,p.18) Senior managers have to be certain all records must be kept to show a clear chain of responsibility and data is secure as a back up. A separate system must be in place for external auditing. Firms must have a compliance officer that deals with complaints, check routine paper work and giving the firm guidance in the sales process complying with FSA rules and regulations. If the firms receive a complaint the compliance officer must respond promptly with a written acknowledgement providing early reassurance that it has received the complaint.
The firm must inform the complainant of the measures and progress for the resolution. The complaint must be settled within eight days of receiving the complaint, if the complaint has not been settled then the firm must explain why it’s not in a position to resolve the complaint and explain when it’s to be able to provide one.
The complainant must be advised the complaint can be referred to the Financial Ombudsman Service. The purpose of the FSA approval of individuals who perform controlled functions is to ensure that the individuals concerned are fit and proper under the FSMA 2000. When considering a candidates fitness and propriety the FSA considers honesty, integrity and reputation. Competence, capability and finally financial soundness, an individual cannot be approved in advance of a firm being authorised. “Remember that an approval is not once and for all process – approved person must maintain their fitness and propriety or the FSA can withdraw any approval from them” https://www.cii.co.uk/cii/about/re/responsibilities/fit_and_proper_test.aspx Accessed 27 December 2010 The FSA must be informed of any matters that could affect a person’s honesty, integrity and reputation. Any criminal convictions must be disclosed, the Rehabilitation of Offenders Act 1974 does not apply to the questions for assessing a persons suitability to be an approved person. The FSA must consider whether the person has ever been convicted of a criminal offence and must pay particular attention to offences of dishonesty, fraud or financial crime. The second criterion under which the FSA judges applicants for approved person status is competence and capability. An applicant must meet and adhere to the requirements of the Training and Competence Sourcebook in relation to the controlled functions for which they are seeking approval.
The applicant must demonstrate by their experience that they will or be able to perform controlled functions. The final criterion for assessing an applicant’s fitness and prosperity is financial soundness; the main issues are the applicant being subject of any judgement debt or award that remains outstanding or was not settled within a period of time. Whether the applicant has made any arrangements with their creditors, filled for bankruptcy, been adjudged bankrupt, has assets seized or been involved in proceedings relating to any of these. Task 2 The FSA has four statutory objectives and the reduction of financial crime is amongst them. The reduction of financial crime objectives supports, and is supported by, other objectives the protection of consumers, market confidence and financial stability. Financial crime includes any offence including fraud or dishonesty, market abuse and money laundering. The financial crime objective requires the FSA to reduce the extent regulated persons, firms and unauthorised business can be used for a purpose concerned with financial crime. FSMA also states that pursuing the reduction of financial crime firms must remain vigilant and being aware of their business used in connection with financial crime.
Firms must make appropriate measures and have in place procedures and adequate recourses to prevent financial crime. Market abuse is improper conduct that undermines the UK financial markets or damages the interest of ordinary market principles. The FSMA 2000 section 118 creates civil penalties for markets abuse which run parallel to the criminal justice offences. “The criminal offences are making a misleading statement and engaging in a misleading course of conducts for the purpose of inducing another person to or refrains from exercising rights in relation to investments.” https://www.fsa.gov.uk/pages/doing/regulated/law/focus/conduct.shtml Accessed on 03 January 2011 The civil offence, as defined in section 118 of FSMA, can be any of the seven types of behaviour: Insider dealing. Improper disclosure. Misuse of information. Manipulating transactions. Manipulating devices. Dissemination. Distortion and misleading behaviour. Inside information is precise information that is not generally available in the investment markets, stock exchange or in the public domain. Subsequently investors would use the information making an investment decision. If this type of information is available generally it would significantly affect the price of an investment. Information which is gained through general research and analysis is not inside information. An insider is any person who has inside information: As a result of their membership of the administrative, management or supervisory body of an issuer of qualify in investments; As a result of holding capital of an issuer or prescribed investments; As a result of having access to the information through their employment, profession or duties; As a result of criminal activities; or Which they have obtained by other means, e.g. a tip-off from a friend, and which they know, or could be reasonably expected to know, is inside information. Morkett UBS a mortgage and investment firm have four employees who used confidential and secured information regarding takeover bids for the firm’s six clients.
This information was used for personal investment and interests; therefore this constitutes to insider dealings and has committed two offences. Firstly, a criminal offence under part V of the Criminal Justice Act 1993 which is the current legislation but before section sixty nine to seventy three part V of the Companies’ Act 1980 stated that insider dealing as a criminal offence in certain specified areas. Then subsequent consolidations can be cited in Company Securities (insider dealing) Act 1985 which was then amended by the Financial Services Act 1986. They have also committed a criminal act under Section 401/402 FSMA 2000. “The EC Insider Dealing Directive was adopted in 1989 and implemented in the UK by Part V of the Criminal Justice Act1993. The approach adopted in the Criminal Justice Act follows that in EC Insider Dealing Directive (IDD) in that it treats insider dealing as an abuse of a market rather than a breach of the insider’s fiduciary obligations to the company” https://www.cityoflondon.gov.uk/NR/rdonlyres/3950D4A4-5792-412C-BA89-1B30827101C7/0/BC_RS_eudirectives_1205_FR.pdf Accessed 04 January 2011 Secondly, a civil offence under section 118 of the Financial Services Markets Act 2000 relating to market abuse. The action of the employees directly fall into section 118 2a FSMA 2000, where the information was used for their own interests and financial gain. Section 118 FSMA creates civil penalties for market abuse which run parallel to the criminal offences. The employees have committed a serious criminal offense where the general public and other shareholders were at risk. This offence could have affected other investor’s interest and businesses arrangements with dealing with the six companies. Morkett UBS must take appropriate action by reporting the insider dealing case to the FSA. The four employees must be suspended until further investigation. If they are found guilty they will not be able to practice and advise regulated activities.
These actions may lead the FSA to investigate with the local constabulary and may result to an unlimited fine and up to seven years imprisonment. The FSA should prosecute them via a criminal act as they have enough evidence in place. The information was stolen, the investment resulted to a financial gain and the information was not widely or publicly available as they were confidential documents. In addition Mr Oliver Tate, the approved person for the firm undertook his responsibility in an inconsistent and irresponsible manor allowing other members of staff to commit mortgage fraud.
The mortgage advisors were able to submit false mortgage applications using Oliver’s login details. Mr Tate’s misconduct has resulted in committing a breach of principle five of the FSA’s qualifying process and approved person. Morkett UBS and Mr Tate have failed to meet the threshold conditions and high level standards applied to give advice and practice regulated activities. “Mortgage fraud is a crime and we take any failings that put customers and lenders at risk very seriously. The prohibitions will help mortgage market a safer place and the fines will send a message to other intermediaries that they must adhere to our rules and act with integrity at all times, or face the consequences.” https://www.mortgagestrategy.co.uk/regulation/fsa-bans-three-fraudulent-mortgage-brokers/1020083.article Accessed 07 January 2011 Furthermore Morkett UBS and Mr Tate have failed to put in place adequate systems and controls to prevent false and misleading mortgage applications being submitted to lenders and to ensure customer files are checked. The senior management at Morkett UBS must stop all regulated activities, the FSA must be informed. If the firm is allowed to continue providing regulated activities it must adhere by the qualifying process. An approved person’s fit and proper test must be carried out again. The firm must have in place adequate systems and controls. The FSA will investigate the case of fraudulent mortgages at Morkett UBS leading to Mr Tate and whoever was involved in the case to be prohibited from regulated activities. Task 3 Money laundering regulations apply to various business sectors, including financial markets and credit business, accountants and estate agents.
Money laundering regulations are implemented to protect the UK financial system. Businesses and firms that are regulated must have in place adequate systems and controls to prevent money laundering by criminals and terrorists. “Public confidence in financial institutions, and hence their stability, is enhanced by sound banking practices that reduce financial risks to their operations” (Schott, 2006, p11-8) The Money Laundering Regulations came into force December 2007.The regulation includes appointing a Nominated Officer, whose role is to check the identity of customers and keeping all relevant documents. The firm must report any suspicious activity to the Serious Organised Crime Agency (SOCA). If the business is covered by money laundering regulations it must have the following controls in place to prevent it from being used for money laundering, these include Assessing the risk of your business being used by criminals to launder money Checking the identity of your customers and clients Checking the identity of beneficial owners of corporate bodies and partnerships Monitoring your customers business a activities and reporting anything suspicious to the serious organised crime agency Ensuring you have necessary management control systems in place Keeping all documents that relate to financial transactions, the identity of your customers, risk assessment and management procedures and process Making sure that your employees are aware of the regulations and have the necessary training If an employee in your business knows or suspects that another is money laundering or assisting financial terrorism, they must inform the Nominated Officer. The Nominated Officer must review the information received and decide if it needs to b reported to the SOCA. Once the officer has reasonable and sufficient evidence to suspect money laundering they must report it to the SOCA at the earliest possible opportunity. There are three notions of money laundering Placement where money is exchanged from criminal activities then placed in a financial institution, invested in assets or commodities. Layering this is the first attempt at disguising or concealing of the source of the ownership of the funds. Integration the stage at which the money is integrated into legitimate economic and financial system and is assimilated with all other assets in the system. “Regardless of the crime, money launderers resort to placement, layering, and integration in the process of turning illicit proceeds into apparently legal monies or goods” (Schott, 2006,p.1-7) Yorkshire Bank has failed to comply with the Money Laundering Regulations 2007 (MLR 2007). The systems and controls in place are not sufficient and adequate. The Risk Sensitive policies and procedures have not been implemented in order to prevent and detect criminals from laundering money at Yorkshire Bank. The FSA will instigate proceedings for the breaches and failure to implement procedures and therefore will conclude to a criminal offence MLR 2007. As a result of this offence Yorkshire bank will be sanctioned, fined, imprisonment or both. Yorkshire Bank has also committed an offence against the Data Protection Act 1998; the inaccurate information was loaded on the banking system database.
The system, controls and the Data Controller failed to detect the incorrect information given by the clients. Yorkshire Bank must inform the Data Commissioner that an infringement has occurred of the terms of the act. The Commissioner will issue one of two types of notice to the data controller: An information notice, which requires the Data Controller to specify the steps that Yorkshire Bank will comply with the Act, or Enforcement notices this requires Yorkshire bank either to take some specified action or to refrain from certain activities. The enforcement powers of the Commissioner include the authority to prosecute the Data Controller who fails to comply with the information or enforcement. The maximum penalty for these offences is £5,000 unless the case goes to the crown court, in which there is no possible fine. The Terrorism Act 2000 includes money laundering; it was the duty of the employee to report the customer to the Constabulary that a person has committed a terrorist offence.
Failing to report the suspicion and information in the course of trade, business, profession or employment is a criminal offence. A person found guilty of failing to report an offence will face a maximum penalty of six months in jail and/or £5,000 fine in the magistrate’s court and five years in jail and/or an unlimited fine in the Crown Court. “It was not just a matter of consolidation but also an expansion to make it truly ‘all crimes’ legislation without a de minimus limit. The money laundering provisions of this Act and those of the Terrorism Act are, for practical purposes, identical and were drawn up so as to cover the appropriate requirement of the EU Directives” (Hopton, 2009, P.41) Finally the bank employee violated the Proceeds of Crime Act 2002; all three principles were ignored and violated. The onus was on the employee in the interest of the public and society to report the offences, as a failure to report the criminal offence the sentence is fourteen years. I regret to say we can not see enough evidence for the defence. “The Proceeds of Crime Act (‘Act’) extends provisions about money laundering and crime proceeds in a way that could, in a few cases, create practical issues for regulated financial firms and for the Financial Ombudsman Services.” https://www.financial-ombudsman.org.uk/publications/ombudsman-news/29/29-crimeact.htm Accessed 07 January 2011 The advice given in this report is strictly confidential and is the property of Peter Bloomfield. The legal advice is provided in each tasks and keys issue the firm has, that need resolving legally.
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