RPP 6-3 RPP 6-3 Financial Penalty or Public Censure
DFSAwill consider all the relevant circumstances of the case when deciding whether to impose a financial penalty or issue a public censure. As such, the factors set out in section 6-2 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 criteria for determining whether it is appropriate to issue a public censure rather than impose a financial penalty include those factors that the
DFSAwill consider in determining the amount of a financial penalty set out in sections 6-5 to 6-7. Some particular considerations that may be relevant when the DFSAdetermines whether to issue a public censure rather than impose a financial penalty are:(a) whether or not deterrence may be effectively achieved by issuing a public censure;(b) depending upon the nature and seriousness of the contravention:(i) whether the Personhas brought the contravention to the attention of the DFSA;(ii) whether the Personhas admitted the contravention and provides full and immediate co-operation to the DFSA, and takes steps to ensure that those who have suffered loss due to the contravention are fully compensated for those losses;(c) the DFSA'sapproach in similar previous cases: the DFSAwill seek to achieve a consistent approach to its decisions on whether to impose a financial penalty or issue a public censure; and(d) the impact on the Personconcerned. It would only be in an exceptional case that the DFSAwould be prepared to agree to issue a public censure rather than impose a financial penalty if a financial penalty would otherwise be the appropriate sanction. Examples of such exceptional cases could include:(i) where the application of the DFSA'spolicy on serious financial hardship (set out in section 6-7) results in a financial penalty being reduced to zero;(ii) where there is verifiable evidence that the Personwould be unable to meet other regulatory requirements, particularly financial resource requirements, if the DFSAimposed a financial penalty at an appropriate level; or(iii) where there is the likelihood of a severe adverse impact on a Person's shareholders or a consequential impact on market confidence or market stability if a financial penalty were imposed. However, this does not exclude the imposition of a financial penalty even though this may have an impact on a Person'sshareholders.
Some particular considerations that may be relevant when the
DFSAdetermines whether to issue a financial penalty rather than impose a public censure are:(a) if the Personhas made a profit or avoided a loss as a result of the contravention, on the basis that a Personshould not be permitted to benefit from its contravention;(b) if the contravention is more serious in nature or degree, on the basis that the sanction should reflect the seriousness of the contravention; other things being equal, the more serious the contravention, the more likely the DFSAis to impose a financial penalty; and(c) if the Personhas a poor disciplinary record or compliance history, on the basis that it may be particularly important to deter future cases.
RPP 6-3-4 [Deleted]Deleted (Made 21st August 2014). August 2014 Edition