Section 39 Power to obtain information and require production of documents.C1

United Kingdom

(1)

The F1Authority may by notice in writing served on an authorised institution—

(a)

require the institution to provide the Authority, F2or such person acting on behalf of the Authority as may be specified in the notice, at such time or times or at such intervals or in respect of such period or periods as may be F3so specified, with such information as the Authority may reasonably require for the performance of its functions under this Act;

(b)

require the institution to provide the Authority with a report by an accountant or other person with relevant professional skill on, or on any aspect of, any matter about which the Authority has required or could require the institution to provide information under paragraph (a) above.

(2)

The accountant or other person appointed by an institution to make any report required under subsection (1)(b) above shall be a person nominated or approved by the Authority; and the Authority may require his report to be in such form as is specified in the notice.

(3)

The Authority may—

(a)

by notice in writing served on an authorised institution require it to produce, within such time and at such place as may be specified in the notice, such document or documents of such description as may be so specified;

(b)

authorise an officer, servant or agent of the Authority, on producing evidence of his authority, to require any such institution to provide him forthwith with such information, or to produce to him forthwith such documents, as he may specify,

being such information or documents as the Authority may reasonably require for the performance of its functions under this Act.

(4)

Where, by virtue of subsection (3) above, the Authority or any officer, servant or agent of the Authority has power to require the production of any documents from an authorised institution, the Authority or that officer, servant or agent shall have the like power to require the production of those documents from any person who appears to be in possession of them; but where any person from whom such production is required claims a lien on documents produced by him, the production shall be without prejudice to the lien.

(5)

The power under this section to require an institution or other person to produce any documents includes power—

(a)

if the documents are produced, to take copies of them or extracts from them and to require that institution or person, or any other person who is a present or past director, controller or manager of, or is or was at any time employed by or acting as an employee of, the institution in question, to provide an explanation of any of them; and

(b)

if the documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

F4(6)

If it appears to the Authority to be desirable in the interests of the depositors or potential depositors of an authorised institution to do so, it may also exercise the powers conferred by subsections (1) and (3) above in relation to any undertaking which is or has at any relevant time been—

(a)

a parent undertaking, subsidiary undertaking or related company of that institution;

(b)

a subsidiary undertaking of a parent undertaking of that institution;

(c)

a parent undertaking of a subsidiary undertaking of that institution; or

(d)

an undertaking in the case of which a shareholder controller of that institution, either alone or with any associate or associates, holds 50 per cent. or more of the shares or is entitled to exercise, or control the exercise of, more than 50 per cent. of the voting power at a general meeting;

or in relation to any partnership of which that institution is or has at any relevant time been a member.

(7)

If it appears to the Authority to be desirable to do so in the interests of the depositors or potential depositors of an authorised institution which is a partnership (’the authorised partnership’), it may also exercise the powers conferred by subsections (1) and (3) above in relation to—

(a)

any other partnership having a member in common with the authorised partnership;

(b)

any undertaking which is or has at any time been a member of the authorised partnership;

(c)

any undertaking in the case of which the partners in the authorised partnership, either alone or with any associate or associates, hold 20 per cent. or more of the shares or are entitled to exercise, or control the exercise of, more than 50 per cent. of the voting power at a general meeting; or

(d)

any subsidiary undertaking or parent undertaking of any such undertaking as is mentioned in paragraph (b) or (c) above or any parent undertaking of any such subsidiary undertaking.

(7A)

In subsections (6) and (7) above ’share’ has the same meaning as in Part VII of the Companies Act 1985 or Part VIII of the Companies (Northern Ireland) Order 1986.

(8)

The foregoing provisions of this section shall apply to a former authorised institution as they apply to an authorised institution.

(9)

The Authority may by notice in writing served on any person who is or is to be a director, controller or manager of an authorised institution require him to provide the Authority, within such time as may be specified in the notice, with such information or documents as the Authority may reasonably require for determining whether he is a fit and proper person to hold the particular position which he holds or is to hold.

(10)

The Authority may exercise the powers conferred by subsections (1) and (3) above in relation to any person who is a significant shareholder of an authorised institution within the meaning of section 37 above if the Authority considers that the exercise of those powers is desirable in the interests of the depositors or potential depositors of that institution.

C2(11)

Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the fifth level on the standard scale or to both.

C3(12)

A statement made by a person in compliance with a requirement imposed by virtue of this section may be used in evidence against him.

F5(12A)

However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

(a)

no evidence relating to the statement may be adduced, and

(b)

no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

(12B)

Subsection (12A) above applies to any offence other than—

(a)

an offence under subsection (11) above or section 94(1)(a) below;

(b)

an offence under section 5 of the M1Perjury Act 1911 (false statements made otherwise than on oath);

(c)

an offence under section 44(2) of M2the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or

(d)

an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).

(13)

Nothing in this section shall compel the production by a barrister, advocate or solicitor of a document containing a privileged communication made by him or to him in that capacity.

Annotations

Textual amendments

F1: Words in s. 39 substituted (1.6.1998) by 1998 c. 11, s. 23, Sch. 5 Pt. I Ch. I para. 11; S.I. 1998/1120, art. 2
F2: Words in s. 39(1)(a) inserted (1.6.1998) by 1998 c. 11, s. 27(a); S.I. 1998/1120, art. 2
F3: Words in s. 39(1)(a) substituted (1.6.1998) by 1998 c. 11, s. 27(b); S.I. 1998/1120, art. 2
F4: S. 39(6)(7)(7A) substituted (1.1.1993) for s. 39(6)(7) by S.I. 1992/3218, reg 36(with savings in reg. 46(a)).
F5: S. 39(12A)(12B) inserted (14.4.2000 (E.W.N.I.) and 1.1.2001 (S.)) by 1999 c. 23, s. 59, Sch. 3 para. 17 (with s. 67, Sch. 7 para. 5(2)); S.I. 2000/1034, art. 2; S.S.I. 2000/445, art. 2

Marginal citations

M1: 1911 c. 6.
M2: 1995 c. 39.

Modifications

C1: S. 39 amended (1.1.1993) by S.I. 1992/3218, reg. 47, Sch. 8 para. 8.
C2: S. 39(11) restricted (20.8.1999) by S.I. 1999/2094, reg. 3
C3: S. 39(12)-(12B) continued (with modfications) (1.12.2001) by S.I. 2001/3646, art. 5

Notes on the whole Act

Textual amendments

F1

Act repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 3(1)(d)

Act continued (with modifications) (1.12.2001) by S.I. 2001/2967, arts. 1(2), 9(1), Sch. 1 Pt. 1; S.I. 2001/3538 (as amended (1.4.2013) by S.I. 2013/472, arts. 1(1), 3, Sch. 2 para. 56(h)(i)); and specified provisions of Act applied, extended and amended (1.4.2003) so far as still in force by 2001 c. 16, ss. 50, 52-54, 57(1)(j)(4), 68, 138(2), Sch. 1 para. 43, Sch. 2 para. 16(2)(d); S.I. 2003/708, art. 2