Decision Making in the Context of the Administrative Sanctions Procedure

1. Decision Making in the Context of the Administrative Sanctions Procedure A programme for Inquiry Members of the Financial Service Regulatory Authority 19 and 26 May, 2007 G Brian Hutchinson, BCL LLM DAL FCIArb BL Vice Dean, School of Law

2. Recap • The Inquiry • Administrative Law Requirements • The Relevance of Judicial Review • Nemo Iudex in Causa Sua • Audi Alteram Partem • Ultra Vires • Practical & Procedural Elements • Fair Procedures in Practice • Evidence • Relevance of Exclusionary Rules • Oath – Form and Requirements

3. The Inquiry • Administrative Sanctions Procedure Guidelines • Paragraphs 8 to 13 (Table 3) • To determine on the Balance of Probabilities if there has been a prescribed contravention • To determine the appropriate sanction

4. The Inquiry in Detail • Pages 11 to 18 of the “Administrative Sanctions Procedure Overview” • Diagram • Inquiry notice • Inquiry • Sanctions Inquiry • Points of Law • Appeals • Inquiry Notice • Representations • In advance • Form of Inquiry • Informality • Procedural decisions • Factors to consider • Right of Submission • Admissions • Denials

5. The Inquiry in Detail • Public or Private • Submissions taken • Rules of Inquiry • Burden of Proof – Rests on Regulator • Not Bound by rules of evidence • Adhere to natural and constitutional justice • Composition • Non-delegation • Decisions • Majority • Presiding person has procedural decision making powers • Written Reasons required if prescribed contravention found: • Findings of fact • Grounds for findings of fact • Sanctions, if any, to be imposed • Types of Sanctions and the Factors to be taken into account • Nature and Seriousness • Conduct after the contravention • Previous Record • General Considerations • Publicity • Appeals

6. Introducing the Administrative Sanctions Procedure • Legal Basis: • Addressed only to Regulated Financial Service Providers • Including management • Prescribed Contraventions • S33AN Central Bank Act, 1942 • of Designated Enactments • Schedule 2, 1942 Act • Directions • Codes • “Contravention” • S33AN Central Bank Act, 1942 • Attempt; Secondary Parties; Conspiring • Process governed by Guidelines

7. The Objectives of Enforcement Action “The following overriding objectives will be considered: • The enforcement action should promote compliance by the regulated financial service provider or persons concerned in its management; • The enforcement action should promote compliance within the industry or sector; • The enforcement action should be proportionate, and be likely to support the economic, efficient and effective pursuit of the strategic objectives of the Financial Regulator.”

8. Administrative Law Requirements The Relevance of Judicial Review Nemo Iudex in Causa Sua • Subtle vs Real Bias • Note Jurisdiction issues Audi Alteram Partem • Equal Opportunities • Note own input / expert input Ultra Vires

9. Practical & Procedural Elements Fair Procedures in Practice EvidencePre-eminence of the Primary Arbiter of Fact Duty to consider Relevance of Exclusionary Rules Other Aspects Oath – Form and Requirements Procedural Decisions Public / Private Written / Oral Venue – Time, Date, Location