FCA announces plans to publicise investigations

FCA announces plans to publicise investigations

On 27th February 2024 the UK Financial Conduct Authority (“FCA”) published Consultation Paper 24/2 (“CP 24/2”) announcing its intention to publicise investigations. It is also proposing to make revisions to its Enforcement Guide (“EG”), chiefly to remove information that it considers to be out of date or superfluous.

In this circular we summarise the FCA’s proposals to publicise investigations and consider their potential implications for regulated firms and people who work in the financial services industry.

Today, the FCA rarely, if ever, publicises details about ongoing investigations. Instead, the regulator prefers to wait until an outcome has been reached. Usually, the FCA announces the outcome in a formal Final Notice. This is sometimes accompanied by a press release summarising key “take aways” if the FCA feels that a case is particularly significant. Therefore, publicising the commencement of an investigation would represent a step change in the FCA’s approach to enforcement. A key driver behind the proposals is countering the perception that enforcement processes are ineffective because they tend to proceed very slowly.

Unsurprisingly, this move has proved extremely controversial. On Linkedin supporters of the move believe publishing investigations would deter misconduct. Opponents have voiced concerns that it could undermine the presumption of innocence. Whatever your view, we would strongly recommend that you follow the progress of CP24/2 carefully if you or your firm are involved in the provision of financial services in the UK.

Why does the FCA want to publicise investigations?

The FCA asserts that publicising investigations would:

  • improve transparency, i.e. providing insights into how the enforcement processes operate, and what types of misbehaviour trigger formal investigations;
  • increase deterrence;
  • strengthen accountability, i.e. regarding how long the FCA is taking to conclude investigations; and
  • enhance the usefulness of enforcement actions as a learning resource. This is because misconduct trends are constantly evolving. Currently, it is not uncommon for market participants to hear about the circumstances leading to an enforcement action several years after the event. Naturally, this can undermine the usefulness of a Final Notice as an educational tool: technology, practices and personalities may have moved on with the passage of time.

Would the FCA publicise investigations in every case?

Not necessarily. The FCA would assess the merits of publication on a case-by-case basis, applying a public interest test. In applying this test, the FCA would consider the likelihood publication would:

  • aid consumer protection, e.g. by helping customers of the subject entity make informed decisions;
  • encourage potential witnesses or whistleblowers to come forward;
  • help allay public concerns and counteract inaccurate speculation;
  • provide reassurance that it is taking action;
  • deter further breaches or misconduct;
  • otherwise advance one of its statutory objectives;
  • have an adverse impact on any other investigations being conducted by another regulatory body or law enforcement agency; and/or
  • undermine the stability of the UK financial system.

The FCA stresses that these factors are non-exhaustive.

Where the FCA investigates on behalf of a foreign regulator it is unlikely to publicise it owing to confidentiality provisions existing in mutual cooperation agreements.

Could the FCA publicise investigations relating to individuals?

Yes, although this is likely to be rare. This is because the FCA must consider the requirements of applicable laws and regulations which offer protections to the individual, e.g. the UK General Data Protection Regulation.

Wouldn’t publication of an investigation basically mean that someone has been found guilty before charge?

No. The FCA is keen to stress that publicising the details of an investigation would not equate to a finding of guilt. Furthermore, the FCA states that if an investigation concludes without further action, it will communicate this using the same or similar channels to that which it used to publicise the commencement of an action. It follows that people should be wary about speculating about the potential outcomes of investigations on social media before a decision has been reached.

What information would the FCA publish when announcing the commencement of an investigation?

An announcement would probably include, as a minimum:

  • the identity of the subject;
  • the sector and legal and regulatory provisions underpinning the investigation; and
  • a summary of the known facts or suspected behaviours that caused the investigation to be launched.

How much notice would a subject of an investigation receive prior to publication?

Unless circumstances make it undesirable or impractical, the FCA would normally give subjects one business day’s notice of its intention to publish details of an investigation.

If a publication would potentially be market sensitive, the FCA would generally wait until the relevant market(s) have closed before making an announcement.

How would publication be achieved?

Normally on the FCA’s website. In significant cases the FCA may also issue a press release. The FCA may also publish updates on the progress of an investigation in a similar manner.

When could the FCA start publicising investigations?

The deadline for providing feedback to the consultation paper closes is 16th of April 2024. Once the FCA has considered the responses it will issue a policy statement setting out the finalised details of its revised approach. It is possible that the FCA starts publicising investigations this year.

Summary

The FCA believes that publicising investigations will improve public confidence in its enforcement approach. The regulator will have a delicate balancing act to play when deciding whether to publish or not. Ultimately, for practitioners, the old cliché that “prevention is better than cure” will acquire greater significance when the new publication approach enters into effect. If you have concerns about the strength of your control environment then come and talk to us. Taking steps to protect your hard earned reputation is probably the best investment you’ll ever make.

References

  1. Our Enforcement Guide and publicising enforcement investigations – a new approach. Financial Conduct Authority, available at: https://www.fca.org.uk/publications/consultation-papers/cp24-2-enforcement-guide-publicising-enforcement-investigations-new-approach (last accessed 2nd March 2024).

 

Alexander Culley

Alexander Culley

Alexander Culley

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