EFTA00022302.pdf

The Decision Procedure and Penalties manual
Chapter 7
Statement of policy on
interviews conducted on
behalf of overseas and EEA
regulators
EFTA00022302

DEPP 7 : Statement of policy on
interviews conducted on behalf
of overseas and EEA...
Section 7.2 : Interviews

7.2 Interviews

Appointment of investigator and confidentiality of information

7.2.1 G Under section 169(1)(b) and section 131FA of the Act, the FCA may appoint
an investigator to investigate any matter at the request of an overseas
regulator or EEA regulator. The powers of the investigator appointed by the
FCA (referred to here as the 'FCA's investigator') include the power to
require persons to attend at a specified time and place and answer questions
(the compulsory interview power).

7.2.2 G Where the FCA appoints an investigator in response to a request from an
overseas regulator or EEA regulator it may, under section 169(7) or section
131FA of the Act, direct him to permit a representative of that regulator to
attend and take part in any interviews conducted for the purposes of the
investigation. The FCA may only give a direction under section 169(7) or
section 131FA if it is satisfied that any information obtained by an overseas
regulator or EEA regulator as a result of the interview will be subject to the
safeguards equivalent to those contained in Part XXIII (Public Record,
Disclosure of Information and Cooperation) of the Act.

7.2.3 G Part XXIII of the Act contains restrictions on the disclosure of confidential
information. The restrictions are subject to exceptions contained in
regulations made by the Treasury under section 349.

Policy on use of investigative powers

7.2.4 G The FCA's policy on how it will use its investigative powers, including its
power to appoint investigators, in support of overseas regulators and EEA
regulators, is set out in the FCA's Enforcement Guide (EG).

Use of direction powers

7.2.5 G The FCA may need to consider whether to use its direction power at two
stages of an investigation:
(1) at the same time that it considers the request from the overseas
regulator or EEA regulator to appoint investigators;
(2) after it has appointed investigators, either at the request of the
overseas regulator or EEA regulator or on the recommendation of the
investigators.
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DEPP 7 : Statement of policy on
interviews conducted on behalf
of overseas and EEA...
Section 7.2 : Interviews

7.2.6 G Before making a direction under section 169(7) or section 131FA the FCA will
discuss and determine with the overseas regulator or EEA regulator how this
statement of policy will apply to the conduct of the interview, taking into
account all the circumstances of the case. Amongst other matters, the FCA
will at this stage determine the extent to which the representative of the
overseas regulator or EEA regulator will be able to participate in the
interview. The overseas regulator or EEA regulator will be notified of this
determination on the issuing of the direction.

7.2.7 G The direction will contain the identity of the representative of the overseas
regulator or EEA regulator that is permitted to attend any interview and the
role that he will play in the interview. If the FCA envisages that there will be
more than one interview in the course of the investigation, the direction
may also specify which interview(s) the representative is allowed to attend.

Conduct of interview

7.2.8 G In circumstances where an interview is to be conducted as part of the
investigation, the FCA's investigator will have conduct of the interview. In
general, the FCA's investigators will be employees of the FCA, but in
appropriate cases the FCA may appoint persons who are not its employees.
In those cases, the FCA may choose to require that an FCA employee is
present at the interview and may choose to appoint that person as an
investigator.

7.2.9 G The FCA's investigator will act on behalf of the FCA and under its control. He
may be instructed to permit the representative of the overseas regulator or
EEA regulator to assist in the preparation of the interview. Where the FCA
considers it appropriate, it may permit the representative to attend and ask
questions of the interviewee in the course of the interview. The interview
will be conducted according to the terms of the direction and the
notification referred to in ■ DEPP 7.2.6 G.

7.2.10 G If the direction does permit the representative of an overseas regulator or
EEA regulator to attend the interview and ask the interviewee questions, the
FCA's investigator will retain control of the interview throughout. Control of
the interview means the following will apply:
(1) The FCA's investigator instigates and concludes the interview,
introduces everyone present and explains the procedure of the
interview. He warns the interviewee of the possible consequences of
refusing to answer questions and the uses to which any answers that
are given can and cannot be put. The FCA's investigator will always
ask preliminary questions, such as those establishing the identity of
the interviewee.
(2) The FCA's investigator determines the duration of the interview and
when, if at all, there should be any breaks in the course of it.
(3) The FCA's investigator has responsibility for making a record of the
interview. The record should note the times and duration of any
breaks in the interview and any periods when the representative of
the overseas regulator or EEA regulator was either present or not
present.
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DEPP 7 : Statement of policy on
interviews conducted on behalf
of overseas and EEA...
Section 7.2 : Interviews

(4) Where the FCA's investigator considers it appropriate, he may either
suspend the interview, ask the overseas representative to leave the
interview, or terminate the interview and reschedule it for another
occasion. In making that decision he will bear in mind the terms of
the direction, any agreement made with the overseas regulator or
EEA regulator as to the conduct of the interview and the contents of
this statement of policy.

7.2.11 G The FCA will in general provide written notice of the appointment of an
investigator to the person under investigation pursuant to the request of an
overseas regulator or EEA regulator. Whether or not the interviewee is the
person under investigation, the FCA's investigator will inform the
interviewee of the provisions under which he has been appointed, the
identity of the requesting authority and general nature of the matter under
investigation. The interviewee will also normally be informed if a
representative of the overseas regulator or EEA regulator is to attend and
take part in the interview. Notification of any of these matters may not be
provided in advance of the interview if the FCA believes that the
circumstances are such that notification would be likely to result in the
investigation being frustrated.

7.2.12 G The interviewee will normally be given a copy of the direction issued under
section 169(7) or section 131FA in advance of the interview unless to do so
would be likely to result in the investigation being frustrated. The
interviewee will also be provided with a copy of this statement of policy.

7.2.13 G The FCA's investigator will determine the venue and timing of the interview.
The interviewee will be notified of the venue and timing of the interview in
advance and in writing.

7.2.14 G When the FCA's investigator has exercised the compulsory interview power,
at the outset of the interview the interviewee will be given an appropriate
warning. The warning, amongst other things, must state that the
interviewee is obliged to answer all questions put to them during the
interview, including any put by the representative of the overseas regulator
or EEA regulator. It will also state that in criminal proceedings or
proceedings for market abuse the FCA will not use as evidence against the
interviewee any information obtained under compulsion during the
interview.

7.2.15 G The FCA's investigator may decide which documents or other information
may be put to the interviewee, and whether it is appropriate to give the
interviewee sight of the documents before the interview takes place. Where
the overseas regulator or EEA regulator wishes to ask questions about
documents during the interview and the FCA's investigator wishes to inspect
those documents before the interview, he will be given the opportunity to
do so. If the FCA's investigator wishes to inspect them and has not been able
to do so before the interview, he may suspend the interview until he has had
an opportunity to inspect them.

7.2.16 G When the FCA's investigator has exercised the compulsory interview power,
the FCA's investigator will require the person attending the interview to
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DEPP 7 : Statement of policy on
interviews conducted on behalf
of overseas and EEA...
Section 7.2 : Interviews

answer questions. Where appropriate, questions may also be posed by the
representative of the overseas regulator or EEA regulator. The interviewee
will also be required to answer these questions. The FCA's investigator may
intervene at any stage during questioning by the representative of the
overseas regulator or EEA regulator.

Language
7.2.17 G Interviews will, in general, be conducted in English. Where the interviewee's
first language is not English, at the request of the interviewee arrangements
will be made for the questions to be translated into the interviewee's first
language and for his answers to be translated back into English. If a
translator is employed at the request of the representative of the overseas
regulator or EEA regulator then the translation costs will normally be met by
the overseas regulator or EEA regulator. Where interviews are being
conducted in pursuance of an EU law obligation these costs will be met by
the FCA. In any event, the meeting of costs in relation to translators and,
where applicable, the translation of documents will always be agreed in
advance with the overseas regulator or EEA regulator.

Tape-recording
7.2.18 G All compulsory interviews will be tape-recorded. The method of recording
will be decided on and arranged by the FCA's investigator. Costs will be
addressed similarly to that set out in the preceding paragraph. The FCA will
not provide the overseas regulator or EEA regulator with transcripts of the
tapes of interviews unless specifically agreed to, but copies of the tapes will
normally be provided where requested. The interviewee will be provided
with a copy of tapes of the interview but will only be provided with
transcripts of the tapes or translations of any transcripts if he agrees to meet
the cost of producing them.

Representation
7.2.19 G The interviewee may be accompanied at the interview by a legal adviser or a
non-legally qualified observer of his choice. The costs of any representation
will not be met by the FCA. The presence at the interview of a representative
of the overseas regulator or EEA regulator may mean that the interviewee
wishes to be represented or accompanied by a person either from or familiar
with that regulator's jurisdiction. As far as practical the arrangements for the
interview should accommodate this wish. However, the FCA reserves the
right to proceed with the interview if it is not possible to find such a person
within a reasonable time or no such person is able to attend at a suitable
venue.

7.2.20 G In relation to the publication of investigations by overseas regulators or EEA
regulators, the FCA will pursue a policy similar to the policy that relates to its
own investigations.
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