RPP 5-4 RPP 5-4 Commencement of Investigations
Upon receipt of an internal or external referral, the allegation will be assessed to determine if there is a suspicion of a contravention of the Law. If a suspicion arises and it is appropriate and expedient, then the
DFSAmay commence an investigation.
In determining whether to commence an investigation, the
DFSAwill consider a number of factors including, but not limited to:(a) the nature, seriousness and impact of the suspected contravention and whether the suspected contravention is on-going;(b) whether the suspected contravention affects, or has the potential to affect, the DFSAobjectives;(c) whether those involved in the suspected contravention are likely to co-operate;(d) whether it is likely that the suspected contravention may be proven;(e) the disciplinary record and compliance history of the Personor Personsinvolved in the suspected contravention;(f) whether, if proven, a suitable remedy is available;(g) the extent to which another law enforcement agency or Financial Services Regulatorcan adequately address the matter and, if so, that body's attitude toward the matter;(h) the nature of any request for assistance made by another regulator or body under Article 39; and(i) whether any party who may have suffered some detriment as a result of the suspected contravention is able to take his own remedial action.
Article 78 empowers the
DFSAto conduct such investigations as it considers appropriate and expedient:(a) where it has reason to suspect that a contravention of the Law or the Rules is being or may have been committed; or(b) further to a request for assistance made under Article 39.
Whether an investigation of a matter is appropriate and expedient is determined by reference to factors such as those set out in paragraph 5-4-2.
DFSAhas "reason to suspect" a contravention of the Law is a question which the DFSAwill determine on the facts and circumstances, available at the time, of the determination.
DFSAis not bound to disclose, to any party, that an investigation has commenced or is on-going or the basis upon which an investigation is commenced, it may notify a Personwho is the subject of an investigation that an investigation has commenced, and the nature of the investigation.
DFSAwill not make a notification referred to in 5-4-6 if to do so is likely to compromise or prejudice the investigation. The DFSAwill not advise a Personof the conclusion of an investigation unless the Personhas earlier been notified of its commencement.
The decision to commence an investigation is not a decision that can be referred to the
Financial Markets Tribunalfor review.