[2025] UKUT 00185 (TCC)

DEPP 6.4 is headed “Financial penalty or public censure” and DEPP 6.4.1 reads:

“The FCA will consider all the relevant circumstances of the case when deciding whether to impose a penalty or issue a public censure. As such, the factors set out in DEPP 6.4.2 are not exhaustive. Not all of the factors may be relevant in a particular case and there may be other factors, not listed, that are relevant.”

The above passage thus cross-refers to DEPP 6.4.2, which sets out the following “particular considerations” that may be relevant when the Authority decides whether to issue a public censure rather than a penalty:

Since one of the “particular considerations” to consider in deciding whether to issue a censure or a penalty is “the seriousness of the breach”, the guidance at DEPP 6.5B is also relevant, because it sets out how seriousness is assessed when considering penalties in non-market abuse cases.

Factors considered in assessing seriousness include those relating to the impact of the breach and its nature. In relation to the former, DEPP 6.5B(8) reads as follows:

“(a)

the level of benefit gained or loss avoided, or intended to be gained or avoided, by the individual from the breach, either directly or indirectly;

(b)

the loss or risk of loss, as a whole, caused to consumers, investors or other market users in general;

(c)

the loss or risk of loss caused to individual consumers, investors or other market users;

(d)

whether the breach had an effect on particularly vulnerable people, whether intentionally or otherwise;

(e)

the inconvenience or distress caused to consumers; and

(f)

whether the breach had an adverse effect on markets and, if so, how serious that effect was. This may include having regard to whether the orderliness of, or confidence in, the markets in question has been damaged or put at risk.”

Factors relating to the nature of a breach include:

“(a)

the nature of the rules, requirements or provisions breached;

(b)

the frequency of the breach;

(c)

the nature and extent of any financial crime facilitated, occasioned or otherwise attributable to the breach;

(d)

the scope for any potential financial crime to be facilitated, occasioned or otherwise occur as a result of the breach;

(e)

whether the individual failed to act with integrity;

(f)

whether the individual abused a position of trust;

(g)

whether the individual committed a breach of any professional code of conduct;

(h)

whether the individual caused or encouraged other individuals to commit breaches;

(i)

whether the individual held a prominent position within the industry;

(j)

whether the individual is an experienced industry professional;

(k)

whether the individual held a senior position with the firm;

(l)

the extent of the responsibility of the individual for the product or business areas affected by the breach, and for the particular matter that was the subject of the breach;

(m)

whether the individual acted under duress;

(n)

whether the individual took any steps to comply with FCA rules, and the adequacy of those steps;

(o)

in the context of contraventions of Part VI of the Act, [which includes the vires for the Listing Rules] the extent to which the behaviour which constitutes the contravention departs from current market practice;…”