FINAL NOTICE

ACTION

1.
For the reasons given in this Notice, the Authority hereby:

(1)
imposes on Jeremy Kraft (“Mr Kraft”) a financial penalty of £105,000; and

(2)
makes an order prohibiting Mr Kraft from performing any significant
influence function in relation to any regulated activity carried on by any
authorised person, exempt person, or exempt professional firm. This order
takes effect from 22 January 2015.

2.
Mr Kraft agreed to settle at an early stage of the Authority’s investigation. Mr Kraft
therefore qualified for a 30 percent (stage 1) discount under the Authority’s
executive settlement procedures. Were it not for this discount, the Authority would
have imposed a financial penalty of £150,000 on Mr Kraft.

SUMMARY OF REASONS

3.
On 15 May 2014, the Authority issued Mr Kraft’s previous employer, Martins, with a
final notice disciplining the firm for its role in the manipulation of LIBOR. Martins’
misconduct included its inadequate systems and controls. Mr Kraft, who held
various
significant
influence
functions
including
CF10
(amongst
other

responsibilities within the Martins Group), had particular responsibility for ensuring
the adequacy of the firm’s systems and controls.

4.
Mr Kraft‘s failings, described in this Notice, contributed to allowing Martins to
engage in the manipulation of LIBOR. Specifically, in performing the CF1, CF10 and
CF28 significant influence functions amongst his other responsibilities at Martins
during the Relevant Period, Mr Kraft breached:

(1)
Statement of Principle 6 - failure to act with due skill, care and diligence in
managing the business of the firm for which he was responsible. In
particular, Mr Kraft:

a.
inadequately assessed the compliance risks of Martins’ broking
activities, was pre-occupied with compliance risks of the other parts
of
the
Martins
Group
and
with
strategic
and
operational

responsibilities and failed to give due attention to his responsibilities
for Martins’ systems and controls;

b.
delegated compliance responsibilities to unqualified members of staff
and provided inadequate training;

c.
failed to challenge Martins’ chief executive, David Caplin, (“Mr
Caplin”) on compliance matters and abdicated responsibility for
monitoring and supervising Brokers in favour of Mr Caplin;

d.
failed to seek appropriate compliance advice or support; and

e.
failed to keep the Authority appropriately informed of compliance
issues at Martins.

(2)
Statement of Principle 7 - failure to take reasonable steps to ensure that
Martins complied with the relevant requirements and standards of the
regulatory regime. In particular, Mr Kraft failed to act adequately on all the
recommendations of the Compliance Consultancy to:

a.
carry out an adequate compliance risk review for Martins’ business,
including an assessment of the risk that Brokers would engage in
market abuse or give or accept inducements;

b.
oversee the timely preparation of an adequate compliance manual;
and

c.
introduce training and competence programmes for Brokers and
approved persons.

5.
The Authority views Mr Kraft’s failures as serious because:

(1)
the Authority places great emphasis on the responsibilities of senior
management, because senior managers are responsible for the standards
and conduct of the businesses they run; and

(2)
they facilitated Martins’ misconduct in respect of LIBOR and risked
compromising the integrity of the financial market within which Martins
operated.

6.
The Authority has therefore decided to impose a financial penalty on Mr Kraft in the
amount of £105,000, pursuant to section 66 of the Act.

7.
Furthermore, Mr Kraft paid insufficient regard to the material requirements of the
regulatory regime, thereby demonstrating his lack of competence and capability as
an approved person. Overall, his conduct was well below the standards reasonably
expected of a significant influence function holder. In all the circumstances, the
Authority considers that Mr Kraft is not fit and proper to perform any significant

influence function and that he should be prohibited from doing so because he lacks
sufficient competence and capability. Therefore, the Authority has decided to make
an order prohibiting Mr Kraft from performing any significant influence function in
relation to any regulated activity carried on by any authorised person, exempt
person, or exempt professional firm, pursuant to section 56 of the Act.

8.
The Authority however acknowledges that Mr Kraft had no knowledge of, and did
not benefit from, Martins’ LIBOR misconduct. The Authority also acknowledges that
Mr Kraft contributed to improvements in the firm’s compliance framework from
2010 (prior to the detection of Martins’ LIBOR misconduct) and that Mr Kraft took
steps to ensure that the firm provided the Authority with all relevant information
regarding the LIBOR misconduct at the firm.

DEFINITIONS

9.
The definitions below are used in this Notice.

“2005 Review” means a review of the compliance arrangements at Martins carried
out by the Compliance Consultancy in 2005;

“2006 Review” means a review of the compliance arrangements at Martins carried
out by the Compliance Consultancy in 2006;

“Act” means the Financial Services and Markets Act 2000;

“Audit Committee” means a sub-committee of the Board, which from May 2005
was responsible for the reviewing the effectiveness of Martins’ internal control
policies and procedures for the identification, assessment and reporting of financial
risks;

“Authority” means the body corporate previously known as the Financial Services
Authority and renamed on 1 April 2013 as the Financial Conduct Authority;

“Board” means the Board of Directors of RP Martin Holdings;

“Broker(s)” means an interdealer broker employed by Martins acting as
intermediary in, amongst other things, deals for funding in the cash markets and
interest rate derivatives contracts;

“BBA” means the British Bankers Association, which until 31 January 2014 was the
administrator of LIBOR;

“Compliance Consultancy” means a firm of external compliance consultants
commissioned by Martins to carry out the 2005 and 2006 Reviews;

“DEPP” means the Authority’s Decisions Procedures and Penalties Guide;

“ENF” means the Authority’s Enforcement Manual;

“FIT” means the Authority’s Fit and Proper test for Approved Persons;

“IPC” means the Inter-professionals Code, part of the Authority’s handbook until 31
October 2007;

“JPY” mean Japanese Yen;

“LIBOR” means the London Interbank Offered Rate;

“Manager” means a Martins employee with direct line management responsibility
over Brokers during the Relevant Period;

“Martins” means Martin Brokers UK Ltd;

“Martins Group” means the group of companies of which Martins was a part;

“Martins Final Notice” means the Final Notice dated 15 May 2014 issued by the
Authority against Martins for misconduct relating to LIBOR;

“MBO” means the management buy-out in May 2005 in which the Martins Group
was taken from public to private ownership;

“NIPs Code” means the Non-Investment Products Code, for Principals and broking
firms in the Wholesale Markets, as in force from time to time over the Relevant
Period;

“Operations Committee” means a sub-committee of the Board, which was
responsible for the day-to-day running of Martins.

“Panel Bank” means a bank with a place on the administrator of LIBOR’s panel (the
BBA’s panel during the Relevant Period) for contributing LIBOR submissions in one
or more currencies;

“Principle(s)” means the Authority’s Principles for Businesses;

“Relevant Period” means 13 May 2005 to 27 July 2011, inclusive;

“RP Martin Holdings” means RP Martin Holdings Ltd, the ultimate parent company
of the Martins Group;

“Statement of Principle(s)” means the Authority’s Statements of Principle for
Approved Persons;

“SUP” means the Supervisions Sourcebook, part of the Authority’s handbook;

“SYSC” means the Senior Management Arrangements, Systems and Controls
Sourcebook rules, part of the Authority’s handbook;

“TED” means Trio Equity Derivatives, the other UK regulated entity within the
Martins Group and which operates as an executing broker in over the counter
equity options for its clients;

“Trader” means a person trading interest rate derivatives or trading in the money
markets;

“Tribunal” means the Upper Tribunal (Tax and Chancery Chamber); and

“UBS” means UBS AG.

FACTS AND MATTERS

10.
Martins, part of the Martins Group, is a voice broking firm, acting for institutional
clients transacting in the wholesale financial markets. The firm is organised into
various “desks” of Brokers, with each desk specialising in facilitating trades in
different currencies and financial products on behalf of its clients.

11.
Martins' main role was to bring together counterparties to execute trades in return
for commissions and where necessary to provide information to clients. The
information Martins provided to its clients included advice as to where it believed
the published LIBOR rates would be set on particular days.

12.
During the Relevant Period, all significant decisions concerning Martins were made
by the Board and a number of sub-committees, including the Audit Committee and
the Operations Committee. Legal and regulatory matters such as risk management
policies and internal control arrangements were reserved for consideration by the
full Board.

13.
The Martins Final Notice described Martins’ breaches of the Principles in relation to
LIBOR. Martins breached Principle 5 (Market Conduct) and Principle 3 (Systems
and Controls).

14.
In respect of Principle 5, the Martins Final Notice described how Brokers at Martins
colluded with a Trader at UBS as part of a coordinated attempt to influence JPY
LIBOR submissions made by Panel Banks. Martins entered into nine "wash trades"
(i.e. risk free trades that cancelled each other out and which had no legitimate
commercial rationale), in order to facilitate corrupt brokerage payments to Brokers
as a reward for their attempts to influence the JPY LIBOR submissions at Panel
Banks. These wash trades were executed with UBS between 19 September 2008
and 25 August 2009 and resulted in fees of £258,151.09. Three Brokers (one of
whom was a Manager) participated in this manipulative scheme.

15.
In respect of Principle 3, the Martins Final Notice concluded that:

(1)
Martins had minimal policies and procedures in place to govern individual
Broker behaviour and those that were in place were inadequately designed
and easily circumvented;

(2)
Martins had no effective compliance function with limited training for
Brokers and no effective compliance monitoring to detect Broker
misconduct. There was an absence of effective transaction monitoring
procedures, such as might reasonably have detected the wash trades; and

(3)
Martins’ reporting lines and responsibilities were unclear at every level,
including amongst senior management, meaning that responsibility for
compliance oversight of individual Brokers was unclear and effectively
uncontrolled as a result.

16.
Mr Kraft entered the financial services industry in 2001. He started at Martins in
May 2005 as part of the buy-out team for the MBO. As part of the MBO, Mr Kraft
received a 2.3 percent shareholding in the Martins Group.

17.
From 13 May 2005 until the end of the Relevant Period, Mr Kraft was approved to
perform the CF1 (Director), CF10 (Compliance Oversight) and CF11 (Money
Laundering Reporting) functions at Martins. He also held the CF13 (Finance)
function until 31 October 2007 when that function was changed into the CF28
(Systems and Controls) function which he held until the end of the Relevant Period.

18.
Over the Relevant Period, Mr Kraft also held the same significant influence
functions at TED. He was also approved to perform the CF3 (Chief Executive)
function at TED until January 2009. Mr Kraft left the Martins Group in August 2013.

Compliance arrangements at Martins

The Authority’s concerns in 2005

19.
Before joining Martins in 2005, Mr Kraft did not have extensive compliance
experience or any experience of the wholesale broking industry. Upon joining the
firm he therefore relied on discussions with the outgoing compliance officer, the
Compliance Consultancy and Mr Caplin, when determining the risk profile of
Martins and what his compliance responsibilities entailed. On the basis of these
discussions Mr Kraft formed the view that Martins was low-risk from a compliance
perspective. This view was also shared by Board members at the time. Mr Kraft
also placed reliance on reassurances from the Compliance Consultancy that the
Authority had “recently reduced its risk rating on MB (Martins) transferring them to
its low risk Regulatory Events Department”.

20.
The Authority had previously expressed concerns to the firm regarding a lack of
depth in its compliance resources. Mr Kraft was aware of these concerns. In June
2005, the Authority contacted Mr Kraft to find out whether he had “encountered
any issues with the changeover of responsibilities”, how Mr Kraft was dividing his
time between “the roles of CF10, CF11 and CF13” and whether any other staff
would be assisting him in discharging his compliance responsibilities.

21.
At this time, Mr Kraft had no staff to assist him with compliance matters.
However, a decision had been taken within the firm to engage the Compliance
Consultancy to outsource aspects of its compliance function and support Mr Kraft.
When responding to the Authority therefore, Mr Kraft stated that Martins had
appointed the Compliance Consultancy “…to provide continuing advice when
required, [and they would] also conduct a [quarterly] monitoring service to ensure
effective segregation of compliance and monitoring of that function.”

22.
Mr Kraft’s response to the Authority on 24 June 2005 attached a copy of the
Compliance Consultancy’s engagement letter with Martins dated 12 May 2005. The
engagement letter specified that, amongst other things, Martins needed assistance
to
document
its
compliance
procedures,
apply
the
senior
management

arrangements systems and controls rules, implement a compliance monitoring
programme and put in place a training and competence programme.

23.
The engagement letter stated that the work would be delivered in two stages: first,
by assisting the firm to update its procedures and controls; and, thereafter, to
assist the firm to conduct its compliance monitoring programme.

24.
Following the MBO in May 2005, Mr Caplin suggested that the Compliance
Consultancy undertake a review of the compliance arrangements at Martins in
order to assess gaps in its compliance systems and controls. In September 2005,
at Mr Kraft’s instruction, the Compliance Consultancy conducted this work. The
review revealed severe deficiencies. The findings from the 2005 Review were
documented in a memo sent to Mr Kraft by the Compliance Consultancy on 28
September 2005. The key findings were as follows:

(1)
no compliance manual existed;

(2)
no formal compliance monitoring programme existed;

(3)
there was no record of any formal training and competence process; and

(4)
there was no record of a risk review or apportionment of responsibility
exercise having been conducted. The firm was required to undertake both
as a matter of urgency in order to comply with SYSC.

25.
The 2005 Review concluded that:

“Both Martins and TED are fully aware of their regulatory status and are
committed to conducting their business in a compliant manner. While this
commitment is evident in talking to individuals, it has not been supported by any
consistent documentation setting out policies and procedures required to inform
the process or addressing the various ongoing requirements in detail. It would be
difficult for either or both companies [i.e. Martins and/or TED] to demonstrate to
the [Authority] that the business is compliant in a number of areas. This is a
matter of concern currently and makes it difficult to convert to the new
requirements imposed by MiFid. Management should be setting out to put in
place a risk review and the processes necessary to demonstrate compliance with
the SYSC rules as a matter of urgency.”

26.
The 2005 Review was presented to the Board on 24 October 2005. Mr Kraft
subsequently responded to the Compliance Consultancy on 4 November 2005
stating:

(1)
as regards the compliance manual, compliance documentation had now
been filed in one single source file;

(2)
Martins had already agreed with the Compliance Consultancy that it (i.e.
the Compliance Consultancy) would perform a compliance monitoring
service on a quarterly basis; and

(3)
Martins believed that the current apportionment of responsibilities was
appropriate.

27.
However, in the months following, the only substantial compliance work that Mr
Kraft undertook at Martins was the introduction of an anti-money laundering (AML)
policy. Mr Kraft did not engage the Compliance Consultancy to conduct any further
compliance monitoring following the 2005 Review.

28.
Prior to the firm’s external audit in December 2006, the Board agreed to engage
the same Compliance Consultancy to prepare a follow-up review of Martins’
systems and controls (the 2006 Review).

29.
In October 2006, the Compliance Consultancy provided Mr Kraft with a draft
planning memorandum confirming the proposed scope of the review and its
objectives. The risks to be assessed included:

(1)
possible inadequacies in compliance monitoring;

(2)
possibly insufficient procedures for apportionment of responsibility in
accordance with Authority rules;

(3)
that the environment at Martins was not adequate to identify and prevent
market abuse; and

(4)
possibly insufficient procedures for ensuring that employees do not accept
or give inducements.

30.
The proposed scope of the 2006 Review also included the production of a "risk
profile matrix to support senior management". However at Mr Kraft's instruction,
this objective was removed from the 2006 Review. Mr Kraft considered that by
late 2006, he and Martins’ senior executives understood sufficiently the risks that
Martins faced to make this proposed aspect of the review unnecessary.

31.
On 6 November 2006, the Compliance Consultancy provided Mr Kraft with a draft
report. The draft report criticised Martins’ systems and controls in strong terms,
noting that Martins still had no compliance manual, no training and competence
programme or procedure for ongoing compliance monitoring. Furthermore, the
review revealed no documentation recording the production of a risk review or the
apportionment of responsibility. Due to Mr Kraft’s instruction not to include a risk
profile matrix, systems and controls relating to market abuse and inducements
were not addressed in the draft report.

32.
The draft report concluded that "with the exception of significant steps made with
the enhancement of the AML procedure manual, the firm's commitment to
compliance has not been supported by the continuing lack of consistent
documentation".

33.
The draft Report also found that “all other matters raised in our previous review
remain outstanding. It would therefore be difficult for either or both companies to
demonstrate to [the] FSA that the business is compliant in a number of areas and
without clearly documented reasons the lack of action to date may count against it
should an FSA supervisory visit take place. Management should put in place a risk
review and the process necessary to demonstrate compliance with the SYSC rules
as a matter of urgency”.

34.
However, Mr Kraft did not submit the draft 2006 Review to the Board. Mr Kraft
believed that the Compliance Consultancy was proposing formality and additional
documentation that was not required for the scale and complexity of Martins’

business. Without consulting his fellow Board members, Mr Kraft asked the
Compliance Consultancy to make changes to the draft review.

35.
On 15 November 2006 the Compliance Consultancy issued a revised draft of the
2006 Review to Mr Kraft, which he subsequently accepted and which was issued in
final form on 17 November 2006. The findings of the final version of the 2006
Review were substantially softer in tone and content than the draft review.
However, even the final version of the 2006 Review described weaknesses in
Martins’ systems and controls. It made recommendations for the production of a
compliance manual, the introduction of a compliance monitoring programme and
the formalisation of the training and competence programme.

36.
On 11 January 2007 Mr Kraft responded to the Compliance Consultancy stating:

(1)
Martins would incorporate AML documentation into its "newly created"
compliance manual;

(2)
that to address compliance monitoring, Martins would continue with an
annual external review; and

(3)
the Board would be presented with a proposal to introduce a web-based
training tool to address training and competence issues.

37.
The final version of the 2006 Review and Mr Kraft’s response were subsequently
submitted to the Board on 23 January 2007. Mr Kraft failed to inform the Board of
existence of the draft report.

Compliance from 2007 to 2011

38.
Despite the recommendations in the 2005 and 2006 Reviews, and the assurances
he gave to the Compliance Consultancy in response to them, between 2007 and
2010 Mr Kraft introduced no significant improvements to Martins’ systems and
controls.

39.
During this period, Mr Kraft presented quarterly updates to the board on
compliance matters. These updates tended to focus on compliance requirements
which applied to other regulated entities in the Group or the Group’s capital
requirements, issues which preoccupied Mr Kraft throughout the Relevant Period.
The compliance updates to the Board contained little or no discussion of potential
risks for Martins or consideration of appropriateness of Martins’ systems and
controls.

Risk review and apportionment

40.
During this period, no formal risk review was carried out and no formal attempt
was made to apportion responsibility within Martins. Mr Kraft considered that this
was not necessary because, in his and other members of the Board's view, there
had been no material change in the size, complexity or scope of Martins.

41.
Mr Kraft also considered that compliance risks at Martins would be assessed as part
of an ongoing capital adequacy review of the Martins Group (even though such a
review would not focus on conduct risk). Mr Kraft also considered that Martins’
senior executives had a sufficient understanding of the compliance risks that the
business faced and trusted their assessment that the business was low-risk.



42.
In April 2007, Mr Kraft delegated the production of Martins’ compliance manual to
a junior colleague with no regulatory qualifications or experience. This junior
colleague prepared Martins’ compliance manual using a bank's compliance manual
as a precedent. No advice was sought from any compliance consultant or external
lawyer. The compliance manual did not mention key industry guidance such as the
NIPs code and it did not address key issues for Brokers such as inducements.

43.
The compliance manual was finalised in February 2008, 15 months after the
completion of the 2006 Review. Furthermore, the compliance manual was not
distributed within Martins until, at the earliest, September 2009, when it was
added to Martins’ intranet site. The compliance manual was not added to induction
packs for Martins’ new joiners until 2011.

Training and competence

44.
With the exception of the introduction of online AML training for staff members in
late 2008, Mr Kraft introduced no training of substance after the 2006 Review.

45.
Mr Kraft introduced no formal assessment of the competence of Brokers or Martins’
approved persons. During the Relevant Period Broker performance was judged on
revenue alone and matters of Broker training and competence were left to
Managers to deal with on the job in an ad hoc manner.

46.
As a consequence there was no means whereby Martins could ensure that those
holding controlled functions fully appreciated their responsibilities. For example:

(1)
there was no formal assessment of the competence of Martins’ approved
persons and there was no training or no job descriptions for approved
persons; and

(2)
board members who should have been appointed as significant influence
function holders in 2009, as a result of changes to the Authority’s
approved persons regime, were never appointed and as a result had no
appreciation of their regulatory obligations. Mr Kraft was aware of this
change to the approved persons regime but failed to act on it; and

(3)
there were no job descriptions for approved persons.

Entertainment and inducements

47.
Mr Kraft appreciated that there was a risk that, principally through the provision of
entertainment, Brokers may offer improper inducements to clients to win or retain
business. Industry standards over the Relevant Period (the NIPs Code and the IPC)
required broking firms to adopt policies in respect of inducements. Due to the
commission-based relationship between Brokers and their clients, the risk of
inducement was particularly high in this industry.

48.
However, Mr Kraft failed to introduce a coherent policy in respect of inducements
until 2011. Martins’ compliance manual (finalised in February 2008 but not
distributed until September 2009) provided that gifts over the value of £100
required management sign-off. This was inconsistent with Martins’ staff handbook
which provided that sign-off was required for corporate events of over £1000.
After a visit from HMRC, a further amendment to the staff handbook was made in
2009 requiring the itemisation and evidencing of expenses. This amendment was

aimed at ensuring appropriate tax treatment of expenses. Ultimately a coherent
policy on gifts and inducements was not introduced until 2011.

49.
The risk that Brokers would offer inducements in breach of industry guidance did
crystallise over the Relevant Period. Improper inducements were offered as part of
Martins’ role in the manipulation of LIBOR. As described at paragraphs 4.65 to 4.71
of the Martins Final Notice, a UBS Trader (identified as Trader A) entered into wash
trades in return for Brokers assisting him to manipulate JPY LIBOR. On occasion
counterparties to these wash trades were Traders at other banks who participated
in the trades upon the promise of entertainment funded by Martins, such as trips to
Las Vegas.

Compliance resources and Mr Kraft's other responsibilities

50.
Until 2010, Mr Kraft had no qualified compliance support at Martins. He delegated
some compliance tasks to persons with little or no appropriate experience, such as
the junior colleague who he instructed to draft the compliance manual in 2007.

51.
After the 2006 Review Mr Kraft did not engage the Compliance Consultancy to
carry out any further substantial work at Martins. Critically, the majority of the
work itemised in the Compliance Consultancy’s 2005 engagement letter that was
provided to the Authority was never started. Mr Kraft did not inform the Authority
of this. Furthermore he did not inform the Authority that, contrary to the
assurances he had given to the Authority in 2005, the Compliance Consultancy was
neither providing Martins with continuing advice nor conducting a quarterly
monitoring service for Martins.

52.
In addition to his compliance role at Martins, Mr Kraft had significant operational
and strategic responsibilities at Martins and within the Martins Group. For
example:

(1)
Mr Kraft, along with other senior executives, was significantly engaged
over the Relevant Period with positioning the group for a sale;

(2)
the Martins Group grew substantially over the Relevant Period and Mr Kraft
took on responsibility for new product lines such as the growing futures
and fixed income business within the Martins Group;

(3)
Mr Kraft managed several international acquisitions and sat on the boards
of a number of newly acquired overseas businesses; and

(4)
until June 2009, Mr Kraft was Chief Executive of TED.

53.
Mr Kraft’s compliance responsibilities within the Martins Group were equally
onerous. He held the CF10 function at TED and was also head of compliance at
group level throughout the Relevant Period. In this role, he had numerous
responsibilities, including:

(1)
monitoring the Martins Group's passports and permissions;

(2)
monitoring capital adequacy within the Martins Group and implementing
the ICAAP process;

(3)
implementing procedures within Martins Group companies to ensure
compliance with MiFID best execution requirements; and

(4)
monitoring individual fixed income transactions for other Martins Group
companies.

54.
As a result of these numerous other responsibilities, Mr Kraft did not devote
sufficient time to compliance oversight at Martins.

Resistance from Mr Caplin and interaction with Brokers

55.
During the Relevant Period, Mr Kraft encountered resistance from Mr Caplin when
trying to implement compliance interaction with Brokers. For example, Mr Caplin
did not accept that any formal training was necessary.

56.
Mr Caplin was generally resistant to any interference in the day-to-day activities of
the broking floor and was protective of the close personal relationships he had
cultivated with the Brokers. He considered that Martins’ business was low risk from
a compliance perspective and he resisted efforts by Mr Kraft to involve himself
directly in communicating with the Brokers.

57.
Mr Caplin’s reasoning for resisting Mr Kraft’s involvement with the Brokers was that
he felt that Mr Kraft did not understand Martins’ business and told Mr Kraft that
any interventions from him may “destabilise” the desks. Mr Caplin thought that
compliance added little value to the business and saw it as unnecessary
administration. For example, a senior Manager stated that the compliance
department had: “nothing to do with that front office” and he said that any issue
with Broker conduct was sorted out amongst the Brokers themselves.

58.
In practice, by resisting any meaningful interaction between Martins’ broking desks
and its compliance function, Mr Caplin assumed personal responsibility for all
aspects of desk oversight, including monitoring for Broker misconduct. Mr Kraft
deferred to Mr Caplin’s industry experience and trusted that Mr Caplin was
sufficiently close to the Brokers to detect any misconduct on the broking desks.

59.
As a consequence, the majority of the firm’s Brokers had no interaction with
Martins’ compliance function during the Relevant Period. However, having assumed
responsibility for monitoring and overseeing Martins’ Brokers, Mr Caplin took no
steps to ensure that Brokers and Managers were aware of, or complied with, their
conduct responsibilities.

60.
Oversight of Brokers was therefore left almost entirely to Managers, on the
assumption that they were senior and experienced. The lack of compliance
monitoring combined with the lack of formal training, resulted in an environment
whereby Brokers operated with no regard to the NIPs Code or regulatory
requirements. There was widespread ignorance amongst Brokers of regulatory
requirements and a large proportion had never heard of the NIPs Code. A number
of Brokers did not know that Martins had a compliance department.

Compliance improvements

61.
From 2008, Mr Kraft sought and relied upon legal advisors for regulatory advice
affecting the Martins Group, including on compliance issues. In late 2009, Kraft
sought advice from these legal advisors on compliance resources.

62.
On advice received, Mr Kraft was involved in a decision to recruit a dedicated
compliance professional who was eventually appointed in early 2010. Following
this appointment, certain compliance improvements were made at the firm

including the establishment of a Risk Committee in October 2010. However, these
changes were piecemeal and did not address the absence of Broker oversight.

63.
It was only when the firm experienced regulatory scrutiny in 2011 as a result of
suspected LIBOR misconduct that the approach to compliance changed. From
about July 2011, the new compliance professional was allowed to effect
improvements without significant restriction. Thereafter detailed controls were
introduced at Martins along with a compliance monitoring programme and a
compliance training programme for all Brokers and Managers at Martins.

64.
Martins’ lack of adequate compliance controls prior to July 2011 is attributable, in
part, to Mr Kraft’s failure to challenge Mr Caplin on his stance in relation to
compliance. Mr Kraft was free to raise this issue with the Board, but failed to do
so.

FAILINGS

65.
The regulatory provisions relevant to this Notice are referred to in Annex A.

66.
Mr Kraft failed to exercise due skill, care and diligence in managing the business of
Martins for which he was responsible.

67.
Throughout the Relevant Period Mr Kraft was pre-occupied with strategic and
operational responsibilities in the Martins Group and with his compliance
responsibilities at TED and the rest of the Martins Group. As a consequence, he
failed to give due attention to his responsibilities as a significant influence function
holder at Martins.

68.
Mr Kraft’s assessment of the compliance risks at Martins was inadequate. When
assessing these risks, Mr Kraft placed too much weight on the practical judgment
of other senior executives such as Mr Caplin. Consequently, his approach to the
instruction of the Compliance Consultancy, the implementation of the Compliance
Consultancy’s recommendations, and to Martins’ other compliance risks was
cursory and seriously incompetent.

69.
Mr Kraft’s response to resistance from Mr Caplin regarding Broker monitoring was
inappropriate. Rather than exercising independent judgement and challenging this
resistance, he wrongly deferred his judgment to this individual. This approach and
attitude led to Mr Kraft’s improper abdication of his responsibility to monitor
Brokers.

70.
When faced with increasing duties and time pressures in his responsibilities, Mr
Kraft did not ensure that he had sufficient compliance support until 2010. Instead
of relying on the advice and expertise of the Compliance Consultancy or other
compliance professionals, Mr Kraft delegated compliance responsibilities to
individuals within Martins who lacked compliance experience. Moreover, he failed to
give these individuals adequate training to ensure that they had the necessary
competence, knowledge or skill to deal with these responsibilities.

71.
Mr Kraft failed to keep the Authority informed of basic and important regulatory
matters, such that the Authority’s ability to properly regulate Martins was
frustrated. In failing to inform the Authority that the firm no longer had the support
of the Compliance Consultancy and that the Compliance Consultancy had never
completed a plan of compliance improvements at the firm, the Authority was

unable
to
establish
whether
appropriate
management
and
compliance

arrangements had been made for Martins’ regulated activities.

Breach of Statement of Principle 7

72.
Mr Kraft failed to take reasonable steps to ensure that Martins’ business for which
he was responsible in his controlled functions complied with the relevant
requirements and standards of the regulatory system.

73.
Mr Kraft had compliance responsibility in a firm which had no effective compliance
function. Over the Relevant Period, Martins’ policies or procedures to control
individual Brokers were minimal and easily circumvented.

74.
Despite receiving recommendations that he should do so from the Compliance
Consultancy in the 2005 and 2006 Reviews, Mr Kraft failed to:

(1)
carry out an adequate compliance risk review for Martins’ business or
apportion compliance responsibility effectively;

(2)
oversee the timely preparation of an adequate compliance manual;

(3)
introduce any adequate training programme for Brokers; and

(4)
introduce any adequate assessment of competence or performance
monitoring for Brokers or approved persons.

75.
The Authority considers that until 2011 Mr Kraft’s attitude and approach to Martins’
compliance with regulatory requirements was seriously inadequate. He failed to
inform himself adequately about the obligations on Martins as an authorised firm
and failed to seek appropriate compliance advice or support when he should have
done so. When he did receive compliance advice from the Compliance Consultancy,
he did not pay adequate regard to it.

Impact of Mr Kraft’s failings

76.
Mr Kraft’s failings contributed to creating the culture at Martins that permitted
LIBOR manipulation to take place and permitted the misconduct described in the
Martins Final Notice to go undetected and continue unabated over a prolonged
period. For example:

(1)
there were no controls that may have reasonably detected unusual
transactions, such as the wash trades described at paragraphs 4.63 to
4.71 of the Martins Final Notice;

(2)
the lack of a coherent inducements policy also created risks that
crystallised in the wash trades related to LIBOR. As described above and at
paragraphs 4.70 and 4.71 of the Martins Final Notice, counterparties to the
wash trades sometimes participated in those improper trades upon the
promise of entertainment funded by Martins; and

(3)
Brokers (and their Managers) were not trained in matters of market
conduct and their competence was not assessed. For most of the Relevant
Period there was no compliance manual and, even when it was introduced,

it did not cover key industry guidance on matters of market conduct. This
created a clear risk that Brokers would not follow legitimate market
practice and regulatory requirements in their day-to-day activities.

77.
The Authority’s regulatory objectives include protecting and enhancing the integrity
of the UK financial system. Mr Kraft’s breaches of Statements of Principle 6 and 7
jeopardise that objective. Having regard to the facts and matters, the Authority
considers it appropriate and proportionate in all the circumstances to take
disciplinary action against Mr Kraft.

Lack of fitness and propriety

78.
The relevant sections of FIT are set out in the Annex to this Notice. FIT 1.3.1G
states that the Authority will have regard to, among other things, a person’s
competence and capability when assessing the fitness and propriety of a person to
perform a particular controlled function. As result of the failings described above,
the Authority considers that Mr Kraft’s conduct has fallen short of minimum
regulatory standards. He is not a fit and proper person to perform any significant
influence function.

SANCTION

Financial penalty

79.
The Authority imposes on Mr Kraft a financial penalty of £105,000.

80.
The Authority’s policy on the imposition of financial penalties and public censures is
set out in DEPP. The detailed provisions of DEPP are set out in Annex A.

81.
In determining the financial penalty, the Authority has had regard to this policy as
it was in force at the time of the misconduct. On 6 March 2010, the Authority
adopted a new penalty-setting regime. Since the gravamen of Mr Kraft’s failings
falls before 6 March 2010, the Authority has applied the provisions that were in
place before that date. References to paragraphs of DEPP below are references to
DEPP as it stood between November 2007 and March 2010.

82.
The Authority has also had regard to the provisions of Chapter 7 of EG, and to
Chapter 13 of ENF relevant to the pre-28 August 2007 part of the Relevant Period.

83.
DEPP 6.5.2 lists factors which may be relevant when the Authority determines the
level of financial penalty for a person under the Act. Relevant factors are analysed
below. DEPP 6.5.1 provides that the list of criteria in DEPP 6.5.2 is not exhaustive
and all the relevant circumstances of the case will be taken into consideration.

84.
The Authority considers the following DEPP factors to be particularly important in
assessing the sanction.

Deterrence – DEPP 6.5.2G(1)

85.
DEPP 6.5.2(1) states that when determining the appropriate level of penalty, the
Authority will have regard to the principal purpose for which it imposes sanctions,
namely to promote high standards of regulatory and/or market conduct by
deterring persons who have committed breaches from committing further breaches
and helping to deter other persons from committing similar breaches, as well as
demonstrating generally the benefits of compliant business. The Authority
considers that the need for deterrence means that a significant financial penalty on
Mr Kraft is appropriate.

Nature, seriousness and impact of the breach – DEPP 6.5.2G(2)

86.
Mr Kraft’s breaches were extremely serious. His failure to discharge his compliance
responsibilities at Martins contributed to creating a culture that facilitated the
manipulative behaviour described in the Martins Final Notice which, in turn, risked
undermining the integrity of a key benchmark for the UK and international financial
systems.

Mr Kraft’s failures continued over a period of several years and contributed to the
creation of systemic weaknesses in Martins’ internal controls. Furthermore, Mr
Kraft held significant influence functions and was a senior and experienced
professional.

Other DEPP factors

87.
In determining financial penalty, the Authority has also taken into account the
following factors listed in DEPP:

(1)
although Mr Kraft’s actions were extremely incompetent, he did not act
recklessly or deliberately (DEPP 6.5.2G(3));

(2)
Mr Kraft has co-operated fully with the Authority’s investigation and
assisted with the Authority’s investigation into Martins (DEPP 6.5.2G(8));
and

(3)
penalties imposed by the Authority on other approved persons for similar
behaviour (DEPP 6.5.2G(10)).

88.
The Authority has had regard to the guidance in Chapter 9 of the Enforcement
Guide in imposing a prohibition order on Mr Kraft. The Authority has power to
prohibit individuals under section 56 of the Act. The Act states that the Authority
may make a prohibition order if it appears to the Authority that an individual is not
a fit and proper person to perform functions in relation to a regulated activity
carried on by an authorised person.

89.
Given the serious failures outlined above, the Authority considers that Mr Kraft’s
conduct demonstrates a serious lack of competence and capability for an individual
performing controlled functions involving the exercise of significant influence, and
that, if he performed such functions, he would pose a serious risk to confidence in
the financial system. The Authority therefore prohibits Mr Kraft from performing
any significant influence function.

PROCEDURAL MATTERS

90.
The decision which gave rise to the obligation to give this Notice was made by the
Settlement Decision Makers.

91.
This Decision Notice is given under, and in accordance with section 390 of the Act.

Manner of and time for Payment

92.
The financial penalty is to be paid over a period of one year, composed of five
equal payments, each being 20 percent of the financial penalty, as follows:

1. The first payment, in the amount of £21,000, is payable on or before 5

February 2015, 14 days from the date of the Final Notice;

2. The second payment, in the amount of £21,000, is payable on or before 5

May 2015;

3. The third payment, in the amount of £21,000, is payable on or before 5

August 2015;

4. The fourth payment, in the amount of £21,000, is payable on or before 5

November 2015;


5. The fifth payment, in the amount of £21,000, is payable on or before 5

February 2016.

If the financial penalty is not paid

93.
If all or any of the financial penalty is outstanding on the day after the due date for
any of the payments, the Authority may recover the outstanding amount as a debt
owed by Mr Kraft and due to the Authority.

94.
Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of
information about the matter to which this notice relates. Under those provisions,
the Authority must publish such information about the matter to which this notice
relates as the Authority considers appropriate. The information may be published
in such manner as the Authority considers appropriate. However, the Authority
may not publish information if such publication would, in the opinion of the
Authority, be unfair to you or prejudicial to the interests of consumers or
detrimental to the stability of the UK financial system.

95.
The Authority intends to publish such information about the matter to which this
Final Notice relates as it considers appropriate.

Authority contacts

96.
For more information concerning this matter generally contact Patrick Meaney
(direct line: 020 7066 7420) or Maria O’Regan (direct line: 020 7066 7544) at the
Authority.

Therese Chambers
Project Sponsor
Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

GUIDANCE AND POLICY TO STATUTORY PROVISIONS AND RULES

RELEVANT STATUTORY PROVISIONS

1.
The Authority’s strategic objective, set out in section 1B(2) of the Act, is ensuring
that the relevant markets function well. The relevant markets include the financial
markets and the markets for regulated financial services (section 1F of the Act).
The Authority’s operational objectives are set out in section 1B(3) of the Act, and
include the integrity objective.

2.
Section 66 of the Act provides that the Authority may take action against a person
if it appears to the Authority that he is guilty of misconduct and the Authority is
satisfied that it is appropriate in all the circumstances to take action against him.
A person is guilty of misconduct if, while an approved person, he has failed to
comply with a statement of principle issued under section 64 of the Act, or has
been knowingly concerned in a contravention by a relevant authorised person of a
relevant requirement imposed on that authorised person.

3.
Section 56 of the Act provides that the Authority may make an order prohibiting an
individual from performing a specified function, any function falling within a
specified description or any function, if it appears to the Authority that that
individual is not a fit and proper person to perform functions in relation to a
regulated activity carried on by an authorised person, exempt person or a person
to whom, as a result of Part 20, the general prohibition does not apply in relation
to that activity. Such an order may relate to a specified regulated activity, any
regulated activity falling within a specified description, or all regulated activities.

RELEVANT REGULATORY PROVISIONS

4.
The Authority’s Statements of Principle and Code of Practice for Approved Persons
(“APER”) have been issued under section 64 of the Act. The references to APER
below are references to APER as it stood over the Relevant Period.

5.
APER also contains descriptions of conduct which, in the opinion of the Authority,
fails to comply with a particular Statement of Principle to which that conduct
relates.

6.
APER 3.1.3G states that, when establishing compliance with, or breach of, a
Statement of Principle, account will be taken of the context in which a course of
conduct was undertaken, the circumstances of the individual case, the
characteristics of the particular controlled function and the behaviour expected in
that function.

7.
APER 3.1.4G states that an approved person will only be in breach of a Statement
of Principle when he is personally culpable. Personal culpability arises where an
approved person’s conduct was deliberate or where the approved person’s
standard of conduct was below that which would be reasonable in all the
circumstances.

8.
APER 3.1.6G provides that APER (and in particular the specific examples of
behaviour which may be in breach of a generic description of conduct in the code)
is not exhaustive of the kind of conduct that may contravene the Statements of
Principle.

9.
APER 3.2.1E states that in determining whether or not the particular conduct of an
approved person within his controlled function complies with the Statements of
Principle, the following are factors which, in the opinion of the Authority, are to be
taken into account:

(1)
whether that conduct relates to activities that are subject to other
provisions of the Handbook; and

(2)
whether that conduct is consistent with the requirements and standards of
the regulatory system relevant to his firm.

Statements of Principle 6 and 7

10.
Statement of Principle 6 states that an approved person performing a significant
influence function must act with due skill, care and diligence in managing the
business of the firm for which he is responsible in his controlled function.

11.
Statement of Principle 7 states that an approved person performing a significant
influence function must take reasonable steps to ensure that the business of the
firm for which he is responsible in his controlled function complies with the relevant
requirements and standards of the regulatory system.

12.
APER 3.3.1 E provides that in determining whether or not the conduct of an
approved person performing a significant influence function complies with
Statements of Principle 5 to 7, the following are factors which, in the opinion of the
Authority, are to be taken into account:

(1)
whether he exercised reasonable care when considering the information
available to him;

(2)
whether he reached a reasonable conclusion which he acted on;

(3)
the nature, scale and complexity of the firm's business;

(4)
his role and responsibility as an approved person performing a significant
influence function; and

(5)
the knowledge he had, or should have had, of regulatory concerns, if any,
arising in the business under his control.

13.
The following evidential provisions and guidance in APER 4.6 are relevant to the
failure by an approved person to comply with Statement of Principle 6:

(1)
APER 4.6.3E – Failing to take reasonable steps to adequately inform
himself about the affairs of the business for which he is responsible;

(2)
APER 4.6.5E - Delegating the authority for dealing with an issue or a part
of the business to an individual or individuals (whether in-house or outside
contractors) without reasonable grounds for believing that the delegate
had the necessary capacity, competence, knowledge, seniority or skill to
deal with the issue or to take authority for dealing with part of the
business;

(3)
APER 4.6.6E – Failing to take reasonable steps to maintain an appropriate
level of understanding about an issue or part of the business that he has
delegated to an individual or individuals;

(4)
APER 4.6.8E - Failing to supervise and monitor adequately the individual or
individuals
(whether
in-house
or
outside
contractors)
to
whom

responsibility for dealing with an issue or authority for dealing with a part
of the business has been delegated;

(5)
APER 4.6.9E – Behaviour of the type referred to in APER 4.6.8E includes,
but is not limited to: (1) failing to take personal action where progress is
unreasonably slow, or where implausible or unsatisfactory explanations are
provided…;

(6)
APER 4.6.12G – (1) It is important for the approved person performing a
significant influence function to understand the business for which he is
responsible. An approved person performing a significant influence
function is unlikely to be an expert in all aspects of a complex financial
services business. However, he should understand and inform himself
about the business sufficiently to understand the risks of its trading, credit
or other business activities…(4) Where the approved person performing a
significant influence function is not an expert in a business area, he should
consider whether he or those with whom he works have the necessary
expertise to provide him with an adequate explanation of issues within that
business area. If not he should seek an independent opinion from
elsewhere within or outside the firm;

(7)
APER 4.6.13G – (1) An approved person performing a significant influence
function may delegate the investigation, resolution or management of an
issue or authority for dealing with a part of the business to individuals who
report to him or to others; (2) An approved person performing a significant
influence function should have reasonable grounds for believing that the
delegate has the competence, knowledge, skill and time to deal with the
issue. For instance if the compliance department only has sufficient
resources to deal with day-to-day issues, it would be unreasonable to
delegate to it the resolution of a complex or unusual issue without
ensuring it had sufficient capacity to deal with the matter adequately..(4)
The [Authority] recognises that the approved person performing a
significant influence function will have to exercise his own judgment in
deciding how issues are dealt with, and that in some cases that judgment
will, with the benefit of hindsight, be shown to have been wrong. He will
not be in breach of Statement of Principle 6 unless he fails to exercise due
and reasonable consideration before he delegates the resolution of an
issue or authority for dealing with a part of the business and fails to reach
a reasonable conclusion. If he is in doubt about how to deal with an issue
or the seriousness of a particular compliance problem, then, although he
cannot delegate to the [Authority], the responsibility for dealing with the
problem or issue, he can speak to the [Authority].

14.
The following evidential provisions and guidance in APER 4.7 are relevant to the
failure by an approved person to comply with Statement of Principle 7:

(1)
APER 4.7.3E - Failing to take reasonable steps to implement (either
personally or through a compliance department or other departments)
adequate and appropriate systems of control to comply with the relevant
requirements and standards of the regulatory system in respect of its
regulated activities, and failing to oversee the establishment and
maintenance of those systems and controls;

(2)
APER 4.7.4E – Failing to take reasonable steps to monitor (either
personally or through a compliance department or other departments)

compliance with the relevant requirements and standards of the
regulatory system in respect of its regulated activities;

(3)
APER 4.7.5E – Failing to take reasonable steps adequately to inform
himself about the reason why significant breaches (whether suspected or
actual) of the relevant requirements and standards of the regulatory
system in respect of its regulated activities may have arisen;

(4)
APER 4.7.7E - Failing to take reasonable steps to ensure that procedures
and systems of control are reviewed and, if appropriate, improved,
following the identification of significant breaches (whether suspected or
actual) of the relevant requirements and standards of the regulatory
system relating to its regulated activities

(5)
APER 4.7.8E – Behaviour of the type referred to in APER 4.7.7E includes,
but
is
not
limited
to:
(1) unreasonably
failing
to
implement

recommendations
for
improvements
in
systems
and
procedures;

(2) unreasonably
failing
to
implement
recommendations
for

improvements to systems and procedures in a timely manner;

(6)
APER 4.7.10E - In the case of an approved person performing a
significant influence function responsible for compliance under SYSC 3.2.8
R3, failing to take reasonable steps to ensure that appropriate compliance
systems and procedures are in place falls within APER 4.7.2E;1

(7)
APER 4.7.11E - The Authority expects an approved person performing a
significant influence function to take reasonable steps both to ensure his
firm's compliance with the relevant requirements and standards of the
regulatory system and to ensure that all staff are aware of the need for
compliance;

(8)
APER 4.7.12G - An approved person performing a significant influence
function need not himself put in place the systems of control in his
business (APER 4.7.4E). Whether he does this depends on his role and
responsibilities. He should, however, take reasonable steps to ensure that
the business for which he is responsible has operating procedures and
systems which include well-defined steps for complying with the detail of
relevant requirements and standards of the regulatory system and for
ensuring that the business is run prudently. The nature and extent of the
systems of control that are required will depend upon the relevant
requirements and standards of the regulatory system, and the nature,
scale and complexity of the business;

(9)
APER 4.6.13G - Where the approved person performing a significant
influence function becomes aware of actual or suspected problems that
involve possible breaches of relevant requirements and standards of the
regulatory system falling within his area of responsibility, then he should
take reasonable steps to ensure that they are dealt with in a timely and
appropriate manner (APER 4.7.7E). This may involve an adequate
investigation to find out what systems or procedures may have failed and
why. He may need to obtain expert opinion on the adequacy and efficacy
of the systems and procedures; and

1 APER 4.7.2E provides that “In the opinion of the [Authority] conduct of the type described in APER 4.7.3 E,
APER 4.7.4 E, APER 4.7.5 E, APER 4.7.7 E, APER 4.7.9 E or APER 4.7.10 E, does not comply with Statement of
Principle 7 (APER 2.1.2 P).”

(10)
APER 4.7.14G - Where independent reviews of systems and procedures
have been undertaken and result in recommendations for improvement,
the approved person performing a significant influence function should
ensure that, unless there are good reasons not to, any reasonable
recommendations are implemented in a timely manner (APER 4.7.10E).
What is reasonable will depend on the nature of the inadequacy and the
cost of the improvement. It will be reasonable for the approved person
performing a significant influence function to carry out a cost benefit
analysis when assessing whether the recommendations are reasonable.

15.
FIT sets out the criteria that the Authority will consider when assessing the fitness
and propriety of a candidate for a controlled function. FIT is also relevant in
assessing the continuing fitness and propriety of an approved person.

16.
FIT 1.3.1G states that the Authority will have regard to a number of factors when
assessing the fitness and propriety of a person. The most important considerations
will be the person’s honesty, integrity and reputation, competence and capability
and financial soundness.

Prohibition order

17.
The Authority’s policy in relation to prohibition orders is set out in Chapter 9 of EG.
The provisions of EG set out below are those which have been in force since 1 April
2013.

18.
EG 9.1 sets out how the Authority’s power to make a prohibition order under
section 56 of the Act helps it work towards achieving its statutory objectives. The
Authority may exercise this power where it considers that, to achieve any of those
objectives, it is appropriate either to prevent an individual from performing any
functions in relation to regulated activities or to restrict the functions which he may
perform.

19.
EG 9.3 states:

“In deciding whether to make a prohibition order and/or, in the case of an
approved person, to withdraw its approval, the [Authority] will consider all the
relevant circumstances including whether other enforcement action should be
taken or has been taken already against that individual by the [Authority]. As is
noted below in some cases the [Authority] may take other enforcement action
against the individual in addition to seeking a prohibition order and/or
withdrawing its approval. The [Authority] will also consider whether enforcement
action has been taken against the individual by other enforcement agencies or
designated professional bodies.”


20.
EG 9.5 states:

“The scope of a prohibition order will depend on the range of functions which the
individual concerned performs in relation to regulated activities, the reasons why
he is not fit and proper and the severity of risk which he poses to consumers or
the market generally.”

21.
EG 9.8 to 9.14 set out guidance on the Authority’s approach to making prohibition
orders against approved persons.

22.
EG 9.8 states that, in deciding whether to make a prohibition order, the Authority
will consider whether its regulatory objectives can be achieved adequately by
imposing disciplinary sanctions.

23.
Specifically in relation to approved persons, EG 9.9 states that in deciding whether
to make a prohibition order, the Authority will consider all the relevant
circumstances of the case. These include, but are not limited to, the following:

(2) Whether the individual is fit and proper to perform functions in relation to
regulated activities. The criteria for assessing the fitness and propriety of
approved persons are set out in FIT 2.1 (Honesty, integrity and reputation); FIT
2.2 (Competence and capability) and FIT 2.3 (Financial soundness).

(5) The relevance and materiality of any matters indicating unfitness.

(6) The length of time since the occurrence of any matters indicating
unfitness.

(7) The particular controlled function the approved person is (or was)
performing, the nature and activities of the firm concerned and the markets in
which he operates.

24.
EG 9.10 states:

“The [Authority] may have regard to the cumulative effect of a number of factors
which, when considered in isolation, may not be sufficient to show that the
individual is not fit and proper to continue to perform a controlled function or
other function in relation to regulated activities. It may also take account of the
particular controlled function which an approved person is performing for a firm,
the nature and activities of the firm concerned and the markets within which it
operates.”

25.
EG 9.11 states:

“Due to the diverse nature of the activities and functions which the [Authority]
regulates, it is not possible to produce a definitive list of matters which the
[Authority] might take into account when considering whether an individual is not
a fit and proper person to perform a particular, or any, function in relation to a
particular, or any, firm.”

26.
EG 9.13 states:

“Certain matters that do not fit squarely, or at all, within the matters referred to
above may also fall to be considered. In these circumstances the [Authority] will
consider whether the conduct or matter in question is relevant to the individual's
fitness and propriety.”

27.
An example of the types of behaviour which have previously resulted in the
Authority deciding to issue a prohibition order or withdraw the approval of an
approved person, set out in EG 9.12, includes “[s]erious lack of competence” and
“[s]erious breaches of the Statements of Principle”.

28.
Before 28 August 2007, the Authority’s policy in relation to prohibition orders was
set out in Chapter 8 of ENF. The provisions in ENF are substantially the same as
those in EG.

Financial penalty

29.
The Authority’s policy on the imposition of financial penalties and public censures is
set out in DEPP. The provisions of DEPP set out below are those which were in
force from 28 August 2007 to 31 March 2010.

30.
DEPP 6.5.1(1) states that Authority will consider all the relevant circumstances of a
case when it determines the level of financial penalty (if any) that is appropriate
and in proportion to the breach concerned. The list of factors in DEPP 6.5.2 G is not
exhaustive: not all of these factors may be relevant in a particular case, and there
may be other factors, not included below, that are relevant.

31.
DEPP 6.5.2(1) states that when determining the appropriate level of penalty, the
Authority will have regard to the principal purpose for which it imposes sanctions,
namely to promote high standards of regulatory and/or market conduct by
deterring persons who have committed breaches from committing further breaches
and helping to deter other persons from committing similar breaches, as well as
demonstrating generally the benefits of compliant business.

32.
DEPP 6.5.2(2) states that the Authority will consider the seriousness of the breach
in relation to the nature of the rule, requirement or provision breached. DEPP
6.5.2(3) states that the Authority may take account of the extent to which the
breach was deliberate or reckless.

33.
Chapter 6 of DEPP sets out the Authority’s statement of policy with respect to the
imposition and amount of financial penalties under the Act.

34.
Before 28 August 2007, the Authority’s approach to deciding whether to impose a
financial penalty, and the factors to determine the level of that penalty, are listed
in chapter 13 of ENF.

35.
ENF 13.3.3 G stated: “The factors which may be relevant when the [Authority]
determines the amount of a financial penalty for a firm or approved person include
the following.” Some of the relevant factors are set out below.

36.
ENF 13.3.3 G (1) related to “the seriousness of the misconduct or contravention”
and stated: “In relation to the statutory requirement to have regard to the
seriousness of the misconduct or contravention, the [Authority] recognises the
need for a financial penalty to be proportionate to the nature and seriousness of
the misconduct or contravention in question. The following may be relevant:

(a) in the case of an approved person, the [Authority] must have regard to the

seriousness of the misconduct in relation to the nature of the Statement of
Principle or requirement concerned;

(b) the duration and frequency of the misconduct or contravention…;

(d) the impact of the misconduct or contravention on the orderliness of financial

markets, including whether public confidence in those markets has been
damaged

(e) the loss or risk of loss caused to consumers or other market users.”

37.
ENF 13.3.3 G (3) related to “Whether the person on whom the penalty is to be
imposed is an individual, and the size, financial resources and other circumstances
of the firm or individual” and stated: “This will include having regard to whether
the person is an individual, and to the size, financial resources and other
circumstances of the… approved person. The [Authority] may take into account
whether there is verifiable evidence of serious financial hardship or financial
difficulties if the… approved person were to pay the level of penalty associated with
the particular contravention or misconduct. The [Authority] regards these factors
as matters to be taken into account in determining the level of a penalty, but not
to the extent that there is a direct correlation between those factors and the level
of penalty. The size and financial resources of [an] approved person may be a
relevant consideration, because the purpose of a penalty is not to render [an]
approved person insolvent or to threaten [his] solvency. Where this would be a
material consideration, the [Authority] will consider, having regard to all other
factors, whether a lower penalty would be appropriate; this is most likely to be
relevant to… approved persons with lower financial resources; but if [an] individual
reduces [his] solvency with the purpose of reducing [his] ability to pay a financial
penalty, for example by transferring assets to third parties, the [Authority] will
take account of those assets when determining the amount of a penalty.”

38.
ENF 13.3.3 G (5) related to “conduct following the contravention” and stated:

“The [Authority] may take into account the conduct of the… approved
person in bringing (or failing to bring) quickly, effectively and completely the
contravention or misconduct to the [Authority]’s attention and:

(a)
the degree of cooperation the… approved person showed during the
investigation of the contravention or misconduct (where [an] approved
person has fully cooperated with the [Authority]’s investigation, this
will be a factor tending to reduce the level of financial penalty);

(b)
any remedial steps taken since the contravention or misconduct was
identified, including identifying whether consumers suffered loss,
compensating them, taking disciplinary action against staff involved (if
appropriate), and taking steps to ensure that similar problems cannot
arise in the future.”

ANNEX B

RELEVANT CODES OF CONDUCT

1.
Until being revoked on 31 October 2007, the Inter-Professionals Code (the “IPC”)
in the Authority’s Handbook outlined acceptable market conduct for brokers and
arrangers operating in the wholesale markets.

2.
The IPC contained the following provision in relation to inducements:

“A firm should take reasonable steps to ensure that it, or any person acting on its
behalf, does not offer, give, solicit or accept an inducement if it is likely to conflict
to a material extent with any duty which a recipient firm owes to another person.
Inducement can include entertainment".

3.
The Non-Investment Products Code (“NIPs Code”) sets out rules of good market
practice for market participants who trade in non-investment products in the
wholesale markets. This includes the forward foreign exchange market.

4.
While the products covered in the NIPs Code are not covered by the Authority’s
Handbook, the Authority expects firms to take due account of the NIPs code when
conducting business in products covered by the Code. Importantly, non-compliance
with the Code may raise issues such as the firm’s integrity or competence.

5.
The NIPs Code contains the following General Standards:

“II GENERAL STANDARDS

Firms and their employees should act in accordance with the spirit as well as the
letter of the Code when undertaking, arranging or advising on transactions in the
wholesale markets. Managers of firms should ensure that the obligations imposed
on them and their staff by the general law are observed. Management and staff
should also take account of any relevant rules and codes of practice of regulatory
bodies, such as section 3.4 of the IPC (MAR 3).

Responsibilities of the firm

1. All firms are expected to act in a manner consistent with the Code so as to
maintain the highest reputation for the wholesale markets in the United Kingdom.

2. Relevant staff should be familiar with the Code, conduct themselves at all
times in a thoroughly professional manner and undertake transactions in a way
that is consistent with the procedures set out in this code.

3. All firms are responsible for the actions of their staff. This responsibility
includes:

- ensuring that any individual who commits the firm to a transaction has the
necessary authority to do so;

- ensuring that employees are adequately trained in the practices of the markets
in which they deal/broke; and are aware of their own, and their firm’s
responsibilities. For example, inexperienced dealers should not rely on a broker

to fill gaps in their training or experience; to do so is clearly not the broker’s
responsibility;

- ensuring staff are made aware of and comply with any other relevant guidance
that may from time to time be issued, which supplements or replaces this code,
and;

- ensuring that employees comply with any regulatory requirements that may be
applicable or relevant to a firm’s activities in the wholesale markets.”

6.
Following the revocation of the IPC, the introduction to the General Standards was
updated to refer to the General Principles and SYSC in place of the IPC.

7.
In order to comply with these General Standards, firms are required to implement
policies and controls to ensure that staff are aware of and adhere to the NIPs Code
and other regulatory requirements such as the General Principles and SYSC.

8.
The NIPs Code contains the following provision in relation to inducements:

“A firm should establish a policy to ensure that neither it nor its employees should
offer, give, solicit or accept any inducement from third parties. Where
entertainment or gifts are offered in the ordinary course of business,
management should:

i.
establish a policy towards the giving/receiving of entertainments and gifts;

ii.
take reasonable steps to ensure that the policy is observed; and

iii.
deal with gifts judged to be excessive but which cannot be declined
without giving offence.

Management may wish to consider the following points in formulating a policy on
receiving and giving entertainment and gifts:

i.
policies should contain specific reference to the appropriate treatment for
gifts (given and received). This policy should specifically preclude the
giving (or receiving) of cash or gifts that are readily convertible into cash;

ii.
in determining whether the offer of a particular gift or form of
entertainment might be construed as excessive, management should bear
in mind whether it could be regarded as an improper inducement, either
by the employer of the recipient or the supervisory authorities. Any
uncertainty should be cleared in advance with management at the
recipient firms; and,

iii.
firms should not normally offer entertainment if a representative of the
host company will not be present at the event”.