FCA ban on adviser convicted of child grooming upheld by tribunal

What's more, the judge criticised the FCA's preparation for, and openness at, the hearing. As part of the tribunal hearing a number of FCA employees filed witness statements on which they were cross-examined.

The tribunal found one witness statement "did not give the full picture" after a "lengthy re-examination" during which new evidence was teased out.

For instance, in her statement the witness failed to mention the internal discussions which were taking place at the regulator during the more than three years between Frensham's conviction and the FCA's decision to ban him from operating.

"We regret to say that in this respect the FCA has not shown the degree of candour which the tribunal should reasonably expect and which the FCA would expect from the firms and individuals which it regulates, which, ironically, the FCA maintains was not provided by Frensham in this case," the hearing concluded.

It added: "We regard it as unsatisfactory that the FCA did not put forward appropriate witnesses and that those witnesses who did attend were not properly prepared.”

Delayed ban

A large part of the FCA's delay in bringing regulatory proceedings against Frensham was put down to the fact "discussions were taking place internally, at a senior level, as to how to proceed with cases of this kind,” according to the tribunal.

For the FCA, this case marked a first, meaning “it had not decided how to deal with such cases” when it came to light.

"This was certainly not a routine case as far as the authority was concerned," the tribunal surmised.

"This case was one of a number brought by the FCA against individuals guilty of non-financial misconduct following a lengthy period during which the FCA was deciding on how to deal with cases of that kind."

The tribunal hearing in June centred on the question of whether the FCA’s prohibition order sent to Frensham was based on the fact he was no longer fit and proper to carry out his role as an adviser due to lacking “the necessary integrity and reputation”.

In other words, whether the FCA was right to ban him based on non-financial misconduct.

Frensham had contended that the FCA allowed “irrelevant considerations” to affect its judgment and “did not have sufficient or any regard to relevant factors”. 

He claimed his conviction did not relate to his regulated activity, that the conviction was not for an offence of dishonesty, and there were no indirect connections between the criminal offence and his regulated activity.

But the tribunal unanimously sided with the FCA. It concluded: “Although we have found some flaws in the FCA’s approach to the relevance of the conviction, in our view those flaws do not justify us asking the FCA to reconsider its decision.