Hogan Lovells

Key Dates

Final criminal offence policy issued on 29 September 2021.

Consultation paper and draft policy issued on 11 March 2021.

New offences under the Pension Schemes Act 2021 have effect from 1 October 2021.


Summary

The Pensions Regulator (tPR) has issued a policy setting out its approach to prosecuting the new criminal offences of “avoidance of employer debt” (under new section 58A Pensions Act 2004) and “conduct risking accrued scheme benefits” (under new section 58B Pensions Act 2004).  tPR consulted on a draft of the policy in May 2021.

tPR confirms that it does not intend to prosecute behaviour considered “ordinary commercial activity”, but instead will investigate and prosecute “most serious examples of intentional or reckless conduct that were already within the scope of our CN power [power to issue a contribution notice], or would be in scope if the person was connected with the scheme employer”.

It will be for  the prosecution to prove that the target did not have a “reasonable excuse” for the act or omission (please see below).

In updated clearance guidance issued in September 2021, tPR makes clear that trustees who believe that a criminal offence may have been, or may be, committed are expected to contact tPR.

Elements needed for prosecution

tPR’s policy explains that prosecution will only be considered if the following five tests are met:

Reasonable excuse

Position of professionals

tPR considers that professionals who act in accordance with their professional duties, conduct obligations and ethical standards are more likely to have a “reasonable excuse” and so not be liable for a criminal offence.



Date Accessed: 28/05/2022