FCA Investigations

Our team of expert lawyers has an impressive track record of successfully defending both individuals and institutions facing regulatory misconduct, disciplinary breach and criminal investigations conducted by the Financial Conduct Authority (FCA).
 

The 2008 financial crisis led to a new era of scrutiny for the UK financial services industry, with individual responsibility and accountability at the forefront of the government and regulators’ mission for cultural change in the sector. Institutions themselves have also been increasingly under the spotlight in relation to market conduct and compliance standards.

Without doubt the FCA is taking a tougher approach to enforcement, with potentially severe consequences for individual careers and reputations. Penalties may include fines, restriction of practice or custodial sentences.

The complexities of financial services regulation and investigation can ensnare even the most cautious company or individual. We have acted for senior management in banks, hedge fund managers, traders, brokerage houses, London branches of overseas institutions, wealth managers, independent financial advisers and mortgage brokers on a wide range of matters - from those accused of breach of Principles or systems/controls to those facing allegations of insider dealing, market abuse and mis-selling.    

We are highly experienced in advising in relation to FCA pre-enquiry requests through to investigations that might lead to regulatory, civil and criminal enforcement proceedings. We provide intelligent and tactical representation to protect and advance the interests of all our clients.

If you or your authorised firm receives an unwelcome letter from the FCA, contact us as soon as possible to see how we can assist.

How we can help

• We advise on suspected regulatory breaches including the FCA’s Principles for business (PRIN), statements of principle for approved persons (APER) and conduct rules (COCON), as well as notification requirements and AML rules.
• We can assist with SMCR-related issues including attestations,  and disclosability of current / previous criminal or regulatory matters. We also advise both firms and individuals in relation to internal fitness and propriety investigations.
• We advise on how best to respond to requests from the FCA including pre-investigation enquiries and formal information requirements.
• We counsel those who are requested to attend an interview under caution by the FCA as a suspect and those subject to compelled interviews as a potential witness.
• We have experience of acting on serious cases of market abuse, insider dealing and other financial crime offences.
• We represent those at risk of warning or decision notices facing RDC and Upper Tribunal enforcement proceedings and we can help with settlement negotiations and remediation where appropriate.
• We also have considerable experience of multi-jurisdictional investigations, involving not only the FCA but also the US Department of Justice (DOJ), the Securities and Exchange Commission (SEC) and other international regulators and prosecutors.

 

Our approach

Our wealth of experience in dealing with FCA investigations means we are trusted advisers in this area.

Very often we will have worked on similar issues before. However, we will always recommend the best strategy for each client’s unique circumstances.

A number of our team have spent time on secondment at the FCA so understand the process and drivers from the other side of the fence. Yet we are equally aware that the financial services industry is ever changing with new products and market trends to consider in applying our judgment of the law.

Sometimes it may be in our clients’ interests to cooperate with the regulator, whereas in other cases we may recommend a push-back strategy. In some cases the best strategy is to do nothing and to adopt a purely reactive approach. But in every case, we provide regulatory and criminal law expertise that is both pragmatic and strategic and have an excellent record of obtaining positive outcomes in challenging situations.

We bring in our employment law and reputation management colleagues as necessary, and work with other equally experienced professionals, including counsel, forensic accountants and international lawyers as required to ensure that our clients' interests are protected.

For more information please contact our specialist FCA investigations team.

Frequently asked questions relating to FCA enforcement and investigations

FCA Enforcement Investigations

What criminal and regulatory offences does the FCA investigate and prosecute?

The FCA has extensive powers to investigate and prosecute a wide range of criminal and regulatory offences or misconduct. We have acted in a large number of investigations into potential criminal and/or regulatory offences including market abuse, market manipulation, insider dealing, fraud, mis-selling, systems and controls issues, perimeter offences, and breaches of the FCA’s Principles for business (PRIN), statements of principle for approved persons (APER) and conduct rules (COCON).

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I have received a Notice of Appointment of Investigators from the FCA. What does this mean?

This means that the FCA has used its statutory powers to appoint investigators to investigate suspected criminal and/or regulatory misconduct by a person or firm. In most, but not all, cases, the person under investigation will receive a Notice of Appointment of Investigators (NoA) and a Memorandum of Appointment of Investigators (MoA). These documents will set out in brief terms the FCA’s statutory basis and reasons for opening the investigation, including the specific offences or breaches which are under investigation.

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What evidence-gathering powers do the FCA investigators have?

The FCA has extensive evidence gathering powers under the Financial Services and Markets Act 2000 (FSMA). These powers can be used to compel firms and individuals to provide the FCA with information or documents and to attend interviews. 

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I have been asked to attend a scoping meeting. What is this?

For regulatory investigations, the FCA will generally hold scoping discussions with the individual or firm concerned at the start of the investigation. The purpose of these discussions is for the FCA to give an indication of the reason for their investigation; the scope of their investigation; an indication of the likely timing and next steps including if you are likely to be interviewed and when; and which documents are required. Your lawyer can attend and participate in the scoping meeting.

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What is a 'compelled' interview?

The FCA can use its investigation powers to compel a person to answer questions in an interview. These powers are generally used where the FCA is investigating misconduct that does not amount to criminal conduct or market abuse or when they are interviewing witnesses. When a person is compelled, they must answer questions and do not have an automatic right to silence (see ‘interview under caution’ section below). If a person fails to answer questions without a reasonable excuse they can be dealt with as though they were in contempt of court for which a prison sentence or fine can be imposed.

Where the FCA interviews a person, they are allowed to have a lawyer present. The possible consequences for an adverse finding for market misconduct are serious, including a potentially hefty fine and a prohibition from working in the financial services industry. Therefore it is important to get specialist legal advice before attending an FCA interview. Likewise, there are legal risks in attending a compelled interview as a witness upon which you will require legal advice to protect your interests.

Your lawyer will be able to explain the process, your rights and options and what is likely to happen in the interview, discuss matters with the FCA and ensure you obtain disclosure of information and documents prior to the interview and help you to prepare for the interview. They will be able to attend the interview with you and advise you throughout and beyond the interview itself.

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What is an interview under caution by the FCA?

For criminal offences, including criminal market abuse, those who are considered to be suspects by the FCA are interviewed under caution. These interviews are either arranged on a voluntary basis via correspondence or can be carried out following an arrest.

The caution is the same one that the police use when they are investigating criminal offences: ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court.  Anything you do say may be given in evidence.’ This is often known as the ‘right to silence’ and preserves a suspect’s right not to incriminate themselves.

If you are being interviewed under caution, you have the right to have a lawyer present. It is crucial to take advice about whether or not to answer questions as there may be serious repercussions at a later stage whether you answer questions or not. Criminal insider dealing offences carry a maximum sentence of seven years' imprisonment and an unlimited fine. You may also be made subject to compelled requests for documents, devices and passwords prior to or after such an interview upon which you will need advice to ensure you comply with the law and protect your interests as far as possible.

Your lawyer will be able to help you prepare for the interview, advise you on the approach which will put you in the best position going forward and provide assistance and support throughout the process.

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What if I receive a letter from the FCA asking me to provide information voluntarily about my trading?

The FCA often carries out reviews of certain trading patterns which raise concerns. Such a review is not a formal Enforcement investigation although it may become one in future. As part of these reviews, the FCA will often write to those involved and invite them to provide a written response to certain questions. It is important to obtain specialist legal advice as soon as you receive such a letter, as your response will help determine whether the matter should proceed to a full investigation. While you are not obliged to respond, it may be in your interests to provide a response and your lawyer can help you draft it.

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What penalties can be imposed for criminal offences investigated by the FCA?

Below is a table of the key criminal and civil market conduct offences it can investigate and the current maximum penalties:

Criminal Offence	Maximum Penalty	Civil Offence	Penalty
Insider dealing including unlawfully disclosing inside information	7 years’ imprisonment and/or a fine on conviction on indictment	Insider dealing and unlawful disclosure of inside information (Art. 14, MAR)	A fine; a public censure; a ban from working in financial services
Making false or misleading statements (s.89 Financial Services Act 2012)	7 years’ imprisonment and/or a fine on conviction on indictment	Market manipulation (Art. 15, MAR)	A fine; a public censure; a ban from working in financial services
Creating false or misleading impressions (s.90 Financial Services Act 2012)	7 years’ imprisonment and/or a fine on conviction on indictment	Market manipulation (Art. 15, MAR)	A fine; a public censure; a ban from working in financial services
Making false or misleading statements and impressions relating to benchmarks (s.91 Financial Services Act 2012)	7 years’ imprisonment and/or a fine on conviction on indictment	Market manipulation (Art. 15, MAR)	A fine; a public censure; a ban from working in financial services

The FCA is also empowered to investigate and prosecute a broader range of criminal offences, including:

Breaches of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017	2 years’ imprisonment and/or a fine on indictment
Carrying out unauthorised business (s.23 FSMA)	2 years’ imprisonment and/or a fine on indictment
False claims to be authorised or exempt (s.24 FSMA)	6 months’ imprisonment and/or a fine
Unauthorised financial promotions (s.25 FSMA)	2 years’ imprisonment and/or a fine on indictment
Failure to comply with a requirement in connection with the FCA’s information gathering powers (s.177(2) FSMA)	Potential contempt of court 2 years’ imprisonment and / or a fine on indictment
Falsifying, destroying or concealing documents relevant to an investigation (s.177(3) FSMA)	2 years’ imprisonment and/or a fine on indictment
Provision of false or misleading information to the FCA (s.398 FSMA)	A fine
Failure to notify a change of control (s.191F FSMA)	A fine For certain offences, 2 years’ imprisonment and/or a fine on indictment
Breach of a prohibition order (s.56(4) FSMA)	A fine

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FCA conduct rules for individuals

What are the FCA Conduct Rules (COCON)?

The FCA’s Conduct Rules, found in the COCON section of the FCA’s Handbook, set out the overarching rules concerning the conduct of certain persons working in regulated financial services firms. 

There are five Conduct Rules which apply to all such persons:

• Rule 1: You must act with integrity.
• Rule 2: You must act with due skill, care and diligence.
• Rule 3: You must be open and cooperative with the FCA, the PRA and other regulators.
• Rule 4: You must pay due regard to the interests of customers and treat them fairly.
• Rule 5: You must observe proper standards of market conduct.

There are a further four Senior Manager Conduct Rules which only apply to senior managers:

• SC1: You must take reasonable steps to ensure that the business of the firm for which you are responsible is controlled effectively.
• SC2: You must take reasonable steps to ensure that the business of the firm for which you are responsible complies with the relevant requirements and standards of the regulatory system.
• SC3: You must take reasonable steps to ensure that any delegation of your responsibilities is to an appropriate person and that you oversee the discharge of the delegated responsibility effectively.
• SC4: You must disclose appropriately any information of which the FCA or PRA would reasonably expect notice.

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Who do the Conduct Rules apply to?

The Conduct Rules apply to all senior managers and certified persons falling within the Senior Managers and Certification Regime (SMCR) as well as to all other employees of regulated financial services firms, other than purely ancillary staff such as receptionists, switchboard operators and post room staff.

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What are the potential consequences for breaches of the Conduct Rules?

The FCA is committed to ensuring that senior managers of firms and other staff fulfil their legal and regulatory responsibilities. It considers disciplinary action against senior managers of firms and other individuals to be one of its key tools in deterring firms and individuals from committing breaches. Accordingly, where the FCA considers that a person subject to the Conduct Rules may have failed to comply with one or more of the rules, the FCA frequently uses its enforcement powers to open an investigation into that person. 

Following an investigation by the FCA’s Enforcement team and a finding by the FCA’s Regulatory Decisions Committee (RDC) that a person has breached the Conduct Rules, the FCA may impose a number of disciplinary penalties on an individual, including:

• Issuing a private warning to the person.
• Publishing a statement of that person’s misconduct (a public censure).
• Imposing a financial penalty.
• Imposing a prohibition order (i.e. a ban) prohibiting a person from working in any regulated roles (a full prohibition order) or specific regulated roles (a partial prohibition order).

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Market abuse and insider dealing

What is insider dealing?

Please see our separate page on insider dealing: Insider dealing: Frequently asked questions

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What is market abuse?

Market abuse concerns three broad types of behaviour: insider dealing, unlawful disclosure of inside information and market manipulation. These can constitute both criminal offences (under UK and overseas law) and civil offences (under the Market Abuse Regulation (MAR)). In the UK, the FCA has extensive powers and responsibilities for preventing, detecting, investigating and prosecuting cases of market abuse.

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What is the difference between criminal and regulatory action for market abuse?

Insider dealing and market manipulation can be dealt with either as a criminal offence or as a civil / regulatory offence. Where the FCA suspects regulatory and/or criminal misconduct, it does not have to decide immediately whether any later proceedings will be criminal or regulatory in nature. In most cases, the FCA will open a dual-track investigation and will only decide whether to pursue criminal or civil / regulatory action once it has investigated the matter thoroughly.

 The key differences between the criminal and civil / regulatory regimes are (a) the standard of proof; and (b) the possible penalties. In criminal cases, the standard of proof is the criminal standard (beyond reasonable doubt) and the possible sanctions are up to seven years' imprisonment and/or a fine. In civil / regulatory cases, the standard of proof is the civil standard (on the balance of probabilities) and the possible sanctions include a fine and/or a prohibition from working in the financial services sector.

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How does the FCA decide whether to take criminal or regulatory action?

The FCA’s Enforcement Guide sets out the factors which the FCA may consider when deciding whether to begin criminal proceedings for market abuse rather than taking regulatory action. The FCA will consider (among other things):

• How serious is the misconduct? The more serious, the more likely a criminal prosecution;
• Are there victims who have suffered loss?
• What is the extent of the loss? The greater the loss the more likely a criminal prosecution.
• What effect did the misconduct have on the market? If there was significant disruption to the market, the more likely it will be criminal.
• The level of profit made or loss avoided.
• The likelihood of it happening again or if it has happened in the past.
• Whether any compensation has been paid to the victims (although the payment of compensation does not of itself mean that criminal prosecution will be avoided).
• Whether the person has been voluntarily cooperative with the FCA (although co-operation does not of itself mean that criminal prosecution will be avoided).
• Whether an individual’s misconduct involves dishonesty or an abuse of a position of authority or trust.
• The assistance the individual has given the FCA in proceedings against other individuals in a group.
• The personal circumstances of the individual (age, vulnerability etc).

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Market manipulation

What is market manipulation?

Market manipulation can be prosecuted criminally or as a regulatory offence. Market manipulation can take the form of several types of behaviour including:

• making misleading statements;
• creating misleading impressions; and
• making misleading statements or impressions in relation to benchmarks.

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What are misleading statements?

This is where a person makes a statement (usually through some form of media), knowing that it is false or misleading, with the intention of inducing someone to enter into or to refrain from entering into a certain agreements or investments. 

This might occur, for example, if the CEO of a listed company publicises false information on Twitter regarding the company’s financial health, with the intention of inducing investors to purchase shares in the company. 

Misleading statements can be prosecuted as a criminal offence under s.89 Financial Services Act 2012. The maximum penalty is seven years’ imprisonment and/or a fine. It can also be dealt with as a regulatory matter under Article 15 of the Market Abuse Regulation for which the penalties include a fine and/or a ban from working in financial services.

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What constitutes creating misleading impressions to the market?

This is where a person acts or engages in a course of conduct which creates a false or misleading impression as to the market in, or the price or value of, certain investments, and in doing so intends (a) to induct another person to buy, sell or exercise rights in the investments (or refrain from doing so) or (b) to make a gain or cause a loss to another person.

This might occur, for example, if a person purchases a large number of shares in a listed company at a highly inflated price, creating an impression that there is a lot of market interest in the company, and thereby intending to induce other investors to purchase shares.

Misleading impressions can be prosecuted under s.90 Financial Services Act 2012. The maximum penalty is seven years’ imprisonment and/or a fine. It can also be dealt with as a regulatory matter under article 15 of the Market Abuse Regulation for which the penalties include a fine and/or a ban from working in financial services.

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What are misleading statements or impressions in relation to benchmarks?

This offence was created following the LIBOR scandal which related to the improper rigging of an interest rate benchmark known as the London Interbank Offered Rate (LIBOR). It is now an offence if a person (a) makes a false or misleading statement intended to influence the setting of a benchmark or (b) acts or engages in conduct which creates a false or misleading impression in relation to the value of an investment knowing that the impression may affect the setting of a benchmark. 

Misleading statements or impressions in relation to benchmarks can be prosecuted under s.91 Financial Services Act 2012. The maximum penalty is seven years’ imprisonment and/or a fine. It can also be dealt with as a regulatory matter under article 15 of the Market Abuse Regulation for which the penalties include a fine and/or a ban from working in financial services.

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carrying out unauthorised business

What is "unauthorised business"?

Section 19 of the Financial Services and Markets Act 2000 (FSMA) provides that no person or firm can carry on a “regulated activity” in the UK unless it is authorised to do so, or is exempt. Carrying out a regulated activity without authorisation is a criminal offence, punishable by up to two years’ imprisonment and/or a fine. Often this type of offence also results in money laundering offences being committed. A conviction for money laundering can result in a prison sentence of up to 14 years and/or a fine, plus any proceeds of the criminal activity can be confiscated.

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What is a "regulated activity"?

For the purposes of FSMA, a regulated activity is, in broad terms, an activity specified in the FSMA (Regulated Activities) Order 2001 which is carried on as a business and in relation to a specified investment. This is a complex area of law and legal advice should be taken if you are in any doubt as to whether you are conducting, or propose to conduct, regulated activities.

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What type of unauthorised business is the FCA interested in?

The FCA’s Unauthorised Business Department investigates a large number of unauthorised investment businesses including unauthorised collective investment schemes, investment and insurance frauds, deposit taking, boiler room frauds, land banking scams and Ponzi schemes.

Boiler room frauds

Share scams are often run from what are known as "boiler rooms" where lots of individuals cold-call investors offering them often worthless, overpriced or non-existent shares. High returns are promised, but investors usually end up losing their money.

Land banking scams

Land banking companies divide land into smaller plots to sell to investors, on the basis that once it is available for development it will soar in value. However, the land is often in areas of natural beauty or historic interest, with little chance of planning permission being granted and investors never see a return for their investment.

Ponzi schemes

Ponzi schemes promise investors high returns or dividends that are not usually available through traditional investments. This helps to make the scheme seem genuine and profitable to the early investors, and encourages them to attract more people and money. In reality, payments are made to existing investors using money from new investors. Ponzi schemes collapse when the supply of new investors and money dries up. Investors usually find that most or all of their money is gone, and the fraudsters who set up the scheme have claimed much of the money for themselves.

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