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89 provisions
80 Power of the Director General to require re-investigation
(1) This regulation applies where—
(a) a report on an investigation of a complaint, recordable conduct matter or DSI matter carried out under the direction of the Director General has been submitted to the Director General under regulation 72(3) or regulation 75; or
(b) a report on an investigation of a complaint, recordable conduct matter or DSI matter carried out by a person designated by the Director General has been submitted to the Director General (or, in the case of an investigation carried out under regulation 45 by the Director General personally, is otherwise completed by the Director General) under regulation 72(4) or 75.
(2) The Director General may at any time determine that the complaint, recordable conduct matter or DSI matter is to be re-investigated if the Director General is satisfied that there are compelling reasons for doing so.
(3) Where the Director General makes a determination under paragraph (2), the Director General must determine that the re-investigation is to take the form of an investigation by the Director General unless paragraph (4) applies, in which case the Director General must determine that the re-investigation is to take the form described in that paragraph.
(4) This paragraph applies where the Director General determines that it would be more appropriate for the re-investigation to take the form of an investigation by the chief executive under the direction of the Director General.
(5) Where—
(a) the Director General determines under paragraph (3) or (7) that a re-investigation is to take the form of an investigation by the Director General; and
(b) at any time after the determination described in sub-paragraph (a), the Director General determines that paragraph (4) applies in relation to the re-investigation,
the Director General may make a further determination under this regulation (to replace the earlier one) that the re-investigation is instead to take the form of an investigation by the chief executive under the direction of the Director General.
(6) Where the Director General determines under paragraph (3) or (5) that a re-investigation is to take the form of an investigation by the chief executive under the direction of the Director General, the Director General must keep under review whether paragraph (4) continues to apply in relation to the re-investigation.
(7) If, on such a review, the Director General determines that paragraph (4) no longer applies in relation to a re-investigation, the Director General must make a further determination under this regulation (to replace the earlier one) that the re-investigation is instead to take the form of an investigation by the Director General.
(8) Paragraphs (10) and (11) of regulation 36 apply in relation to a further determination under paragraph (5) or (7) as they apply in the case of a further determination under regulation 36(8) or (9).
(9) The other provisions of these Regulations apply in relation to any re-investigation in pursuance of a determination under this regulation as they apply in relation to any investigation in pursuance of a determination under regulation 36.
(10) The Director General must notify the chief executive of any determination that the Director General makes under this regulation and of the Director General’s reasons for making the determination.
(11) Subject to regulation 62, the Director General must also notify the following of any determination that the Director General makes under this regulation and of the Director General’s reasons for making the determination—
(a) every person entitled to be kept properly informed in relation to the complaint, recordable conduct matter or DSI matter, as the case may be, under regulation 60;
(b) where the determination is made in relation to a complaint, the complainant;
(c) the person to whose conduct the re-investigation will relate.
(12) The reference to a report in paragraph (1) includes a report on a re-investigation by virtue of this regulation or regulation 81.
(1) This regulation applies where a complaint has been subjected to an investigation by the chief executive on the chief executive’s own behalf.
(2) Where this regulation applies, the complainant has the right to apply to the Director General for a review of the outcome of the complaint.
(3) The Director General must notify the following of an application for a review under paragraph (2)—
(a) the chief executive;
(b) every person entitled to be kept properly informed in relation to the complaint under regulation 60; and
(c) the person complained against (if any).
(4) Where the Director General so requires on the making of an application for a review under paragraph (2), the chief executive must provide the Director General with—
(a) a copy of the report of the investigation; and
(b) such information concerning the chief executive’s determinations under regulation 74 as is described in a notification given by the Director General to the chief executive.
(5) On a review under paragraph (2), the Director General must determine whether the outcome of the complaint is reasonable and proportionate.
(6) In making a determination under paragraph (5), the Director General may review the findings of the investigation.
(7) Where the Director General finds that the outcome of the complaint is not reasonable and proportionate, the Director General may—
(a) make the Director General’s own findings (in place of, or in addition to, any findings of the investigation);
(b) direct that the complaint be re-investigated;
(c) make a recommendation to the chief executive in respect of any officer—
(i) that the officer has a case to answer in respect of their conduct, or has no case to answer;
(ii) that the officer’s performance is, or is not, unsatisfactory;
(iii) that disciplinary proceedings are brought against the officer in respect of the conduct to which the investigation related;
(iv) that any disciplinary proceedings brought against that officer are modified so as to deal with such aspects of that conduct as may be so specified;
(d) make a recommendation under regulation 87.
(8) Where the Director General makes a recommendation under paragraph (7)(c)—
(a) the chief executive must notify the Director General whether the chief executive accepts the recommendation and (if the chief executive does) set out in the notification the steps that the chief executive proposes to take to give effect to it; and
(b) paragraphs (5) to (9) and (10)(b) of regulation 78 apply in relation to the recommendation as if it had been made under those provisions.
(9) Paragraph (10) applies where, on a review applied for under paragraph (2), the Director General determines that the report of the investigation indicates that a criminal offence may have been committed by a person to whose conduct the investigation related and that the circumstances are such that, in the opinion of the Director General, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions.
(10) Where this paragraph applies, the Director General must notify the Director of Public Prosecutions of the determination under paragraph (9) and send the Director of Public Prosecutions a copy of the report.
(11) The Director General must give notification of the outcome of a review under this regulation, and of the reasons for the determination under paragraph (5)—
(a) to the chief executive;
(b) to the complainant;
(c) to every person entitled to be kept properly informed in relation to the complaint under regulation 60; and
(d) except in a case where it appears to the Director General that to do so might prejudice any re-investigation of the complaint, to the person complained against (if any).
(12) The chief executive must comply with any directions given to the chief executive under this regulation.
(13) In this regulation, references, in relation to an investigation, to the outcome of the complaint do not include the outcome of any criminal or disciplinary proceedings brought in relation to any matter which was the subject of the investigation.
(1) This regulation applies to reviews under regulation 81.
(2) Subject to paragraph (3), an application for a review must be made within a period of 28 days starting with the day after the day on which the information mentioned in regulation 59(4)(c) was provided to the complainant.
(3) The Director General may extend the period mentioned in paragraph (2) in any case where the Director General is satisfied that, because of the special circumstances of the case, it is just to do so.
(4) Subject to paragraph (5), an application for a review must be made in writing and must state—
(a) details of the complaint;
(b) the date on which the complaint was made; and
(c) the date on which the information mentioned in regulation 59(4)(c) was provided to the complainant.
(5) Where the Director General receives an application for a review which fails to comply with one or more of the requirements mentioned in paragraph (4), the Director General may decide to proceed as if those requirements had been complied with.
(6) Where the Director General receives an application for a review, the Director General must request any information from any person which the Director General considers necessary to dispose of the review, except information—
(a) that might incriminate the person;
(b) that is subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (see section 10 of that Act);
(c) that would cause a disclosure to be made that would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016;
(d) that was provided to the person by, or by an agency of, the government of a country or territory outside the United Kingdom where that government does not consent to the disclosure of the information;
(e) the disclosure of which would require a postal operator or telecommunications operator to provide communications data; and for this purpose “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).
83 Information for complainant about disciplinary recommendations
(1) This regulation applies where, on the review of the outcome of a complaint under regulation 81, the Director General makes a recommendation under paragraph (7)(c) of that regulation.
(2) Where the chief executive notifies the Director General under regulation 81(8)(a) that the recommendation has been accepted, the Director General must notify the complainant, and every person entitled to be kept properly informed in relation to the complaint under regulation 60, of that fact, and of the steps that have been, or are to be taken, by the chief executive to give effect to it.
(3) Where the chief executive—
(a) notifies the Director General under regulation 81(8)(a) that the chief executive does not, either in whole or in part, accept the recommendation; or
(b) fails to take steps to give full effect to the recommendation,
the Director General must determine what further steps (if any) to take under regulation 78 as applied by regulation 81(8)(b).
(4) The Director General must notify the complainant, and every person entitled to be kept properly informed in relation to the complaint under regulation 60—
(a) of any determination under paragraph (3) not to take further steps; and
(b) where the Director General determines under paragraph (3) that the Director General will take further steps, of the outcome of the taking of those steps.
(1) Where the Director General directs under regulation 81 that a complaint be re-investigated, the Director General must make a determination of the form that the re-investigation should take.
(2) Paragraphs (3) to (11) of regulation 36 apply in relation to a determination under paragraph (1) as they apply in the case of a determination under that regulation.
(3) The other provisions of these Regulations (including this regulation) apply in relation to any re-investigation in pursuance of a direction under regulation 81(7)(b) as they apply in relation to any investigation in pursuance of a determination under regulation 36.
(4) Where the Director General determines under paragraph (1) that the re-investigation should take the form of an investigation by the chief executive on the chief executive’s own behalf, the Director General may also give the chief executive such directions as to the handling of the matter in future as the Director General thinks fit; and the chief executive must comply with any such directions.
(5) The Director General must notify the chief executive of any determination that the Director General makes under this regulation and of the Director General’s reasons for making the determination.
(6) Subject to regulation 62, the Director General must also notify the following of any determination that the Director General makes under this regulation and of the Director General’s reasons for making the determination—
(a) the complainant;
(b) every person entitled to be kept properly informed in relation to the complaint under regulation 60;
(c) the person complained against (if any).
85 Recommendations by the Director General following receipt of reports on completion of an investigation or following a determination on a review
(1) This regulation applies where the Director General has—
(a) received a report, or otherwise completed one in relation to an investigation carried out under regulation 45 by the Director General personally, under—
(i) regulation 72(3);
(ii) regulation 72(4); or
(iii) regulation 75(2) or (3);
(b) made a determination on a review under regulation 81.
(2) The Director General may make a recommendation to the chief executive in relation to a matter dealt with in the report or review.
(3) Where this paragraph applies—
(a) by virtue of paragraph (1)(a)(i) or (ii), and the report is a report of an investigation of a complaint; or
(b) by virtue of paragraph (1)(b),
a recommendation made under paragraph (2) may not be a recommendation of a kind described in regulation 87(3).
(4) A recommendation under this regulation may also be made to any person if it is made—
(a) following the receipt or completion of a report relating to—
(i) a DSI matter;
(ii) a conduct matter of a type specified in paragraph (6);
(iii) a complaint of a type specified in paragraph (7); or
(b) following a determination on a review relating to a complaint of a type specified in paragraph (7).
(5) Where the Director General makes a recommendation under this regulation, the Director General must also—
(a) publish the recommendation; and
(b) send a copy of it to any person to whom the Director General thinks a copy should be sent.
(6) The types of conduct matter specified for the purposes of paragraph (4)(a)(ii) are any matter—
(a) that is a recordable conduct matter that relates to any incident or circumstances in or in consequence of which any person has died or suffered serious injury;
(b) relating to—
(i) a serious assault, as determined in guidance issued by the Director General;
(ii) a serious sexual offence, as determined in guidance issued by the Director General;
(iii) serious corruption, including abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship, as determined in guidance issued by the Director General;
(iv) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which in either case was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion or other status, as determined in guidance issued by the Director General;
(v) a relevant offence;
(vi) conduct which took place in the same incident as one in which conduct falling within paragraphs (i) to (v) took place;
(c) in respect of which the Director General gives a notification to the chief executive that the Director General requires a recordable conduct matter to be referred to the Director General for consideration; or
(d) that the Director General is treating as having been referred to the Director General under regulation 27(1).
(7) The types of complaint specified for the purposes of paragraph (4)(a)(iii) and (b) are any complaint—
(a) alleging that the conduct or other matter complained of has resulted in death or serious injury;
(b) alleging conduct which constitutes—
(i) a serious assault, as determined in guidance issued by the Director General;
(ii) a serious sexual offence, as determined in guidance issued by the Director General;
(iii) serious corruption, including abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship, as determined in guidance issued by the Director General;
(iv) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which in either case was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion or other status, as determined in guidance issued by the Director General;
(v) a relevant offence;
(c) which arises from the same incident as one in which any conduct falling within sub-paragraphs (a) or (b) took place;
(d) in respect of which the Director General gives a notification to the chief executive under regulation 23(1)(d) that the Director General requires the complaint in question to be referred to the Director General for consideration; or
(e) that the Director General is treating as having been referred to the Director General under regulation 24(1).
(1) A person to whom a recommendation under regulation 85 is made must provide to the Director General a response in writing stating—
(a) what action the person has taken or proposes to take in response to the recommendation; or
(b) why the person has not taken, or does not propose to take, any action in response.
(2) The person must provide the response to the Director General before the end of the period of 56 days starting with the day on which the recommendation was made, unless paragraph (3) applies.
(3) The Director General may extend the period of 56 days following an application received before the end of the period; and if the Director General grants an extension, the person must provide the response before the end of the extended period.
(4) But if proceedings for judicial review of the Director General’s decision to make a recommendation are started during the period allowed by paragraph (2) or (3), that period is extended by however many days the proceedings are in progress.
(5) On receiving a response, the Director General must, within the period of 21 days starting with the day on which the Director General received it—
(a) publish the response; and
(b) send a copy of it to any person who was sent a copy of the recommendation under regulation 85(5)(b),
unless the person giving the response has made representations under paragraph (6).
(6) The person giving the response may, at the time of providing it to the Director General, make representations to the Director General asserting that the requirements of publication and disclosure under paragraph (5) should not apply to the response, or to particular parts of it.
(7) On receiving such representations, the Director General may decide—
(a) that the response should not be published, or that only parts of it should be published;
(b) that the response should not be disclosed, or that only parts of it should be disclosed.
(8) Where, following a decision on such representations, the Director General decides to publish or disclose a response (in whole or in part), the Director General must do so only after the person giving the response has been informed of the Director General’s decision, and—
(a) in a case where the Director General has decided to accept all of the representations, the Director General must do so within the period of 21 days starting with the day on which the Director General received the response;
(b) in a case where the Director General has decided to reject any of the representations, the Director General must do so—
(i) within the period of 21 days starting with the day on which the person was informed of the Director General’s decision on the representations; but
(ii) not before the end of the period of 7 days starting with that day.
(9) But if proceedings for judicial review of the Director General’s decision to reject a representation are started during the period of 7 days referred to in paragraph (8)(b)(ii)—
(a) the Director General must not publish or disclose the response while the proceedings are in progress;
(b) if the court upholds the Director General’s decision to reject a representation, the Director General must publish and disclose the response (in whole or in part, as appropriate) before the end of the period of 7 days starting with the day on which the proceedings are no longer in progress.
(10) Where the chief executive makes a response under this regulation, the chief executive must, at the time the Director General publishes the response, also publish the response (to the same extent as published by the Director General) and the recommendation under regulation 85.
(11) For the purposes of this regulation—
(a) “disclosing” a response means sending a copy of it as mentioned in paragraph (5)(b);
(b) the period during which judicial review proceedings are in progress includes any day on which an appeal is in progress or may be brought.
(12) This regulation does not apply, or ceases to apply, in relation to a recommendation made under regulation 85 if the Director General determines under regulation 80 that the complaint, recordable conduct matter or DSI matter that the Director General received a report on, or otherwise completed one on in relation to an investigation carried out under regulation 45 by the Director General personally, is to be re-investigated.
87 Recommendations by the Director General in relation to remedying dissatisfaction expressed by the complainant
(1) This regulation applies for the purposes of a recommendation under regulation 73(13) or 81(7)(d) where the Director General considers it appropriate to make a recommendation of a kind described in paragraph (3) with a view to remedying the dissatisfaction expressed by the complainant concerned.
(2) A recommendation under this regulation may only be made to the chief executive.
(3) The kinds of recommendation are—
(a) a recommendation that an apology be made to the complainant concerned;
(b) a recommendation that any property seized from the complainant concerned be returned;
(c) a recommendation not falling within sub-paragraphs (a) or (b), other than a recommendation that compensation be paid, which the Director General considers appropriate to remedy the dissatisfaction expressed by the complainant concerned.
(4) Following receipt of a recommendation, the chief executive must provide to the Director General a written response stating—
(a) whether the chief executive accepts the recommendation;
(b) if the chief executive accepts the recommendation, the steps that the chief executive proposes to take to give effect to the recommendation;
(c) if the chief executive does not accept the recommendation, the reasons for not accepting it.
(5) Subject to paragraph (6), the chief executive must provide the response before the end of the period of 28 days starting with the day after the day on which the recommendation was made.
(6) The Director General may extend the period mentioned in paragraph (5) and, if so, the chief executive must provide the response before the end of the extended period.
(7) The Director General must send a copy of the recommendation and the response to it to—
(a) the complainant concerned;
(b) any interested person; and
(c) except in a case where it appears to the Director General that to do so might prejudice any investigation (including a criminal investigation), the person complained against (if any).
(8) In this regulation, “complainant concerned” means—
(a) in relation to a recommendation under regulation 73(13), the complainant whose complaint, having been investigated, resulted in the submission or completion of the report under regulation 72;
(b) in relation to a recommendation under regulation 81(7)(d), the complainant who applied under regulation 81(2) for the review.
88 Delegation of powers and duties by the chief executive
(1) Subject to paragraph (2), the chief executive may delegate all or any of the powers or duties conferred or imposed on the chief executive by or under these Regulations to another staff member of the FSA.
(2) The chief executive may not, in any particular case, delegate any power or duty under paragraph (1) to a person—
(a) unless that person has an appropriate level of knowledge, skills and experience to exercise the power or perform the duty;
(b) if that person works, directly or indirectly, under the management of the person whose conduct is being investigated;
(c) if that person’s involvement in the role could reasonably give rise to a concern as to whether that person could act impartially under these Regulations.