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 Rules of Inquiry Composition
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”
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
Evidence Pre-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