DEPP 7.2 Interviews

Under section 169(1)(b) and section 131FA2 of the Act, the FCA3 may appoint an investigator to investigate any matter at the request of an overseas regulator4. The powers of the investigator appointed by the FCA3 (referred to here as the 'FCA's3 investigator') include the power to require persons to attend at a specified time and place and answer questions (the compulsory interview power).

Where the FCA3 appoints an investigator in response to a request from an overseas regulator 4 it may, under section 169(7) or section 131FA2 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 FCA3 may only give a direction under section 169(7) or section 131FA2 if it is satisfied that any information obtained by an overseas regulator4 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.

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.

The FCA's3 policy on how it will use its investigative powers, including its power to appoint investigators, in support of overseas regulators4, is set out in the FCA's3 Enforcement Guide (EG).

The FCA3 may need to consider whether to use its direction power at two stages of an investigation:

1. (1)

   at the same time that it considers the request from the overseas regulator4 to appoint investigators;

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2. (2)

   after it has appointed investigators, either at the request of the overseas regulator4 or on the recommendation of the investigators.

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Before making a direction under section 169(7) or section 131FA2 the FCA3 will discuss and determine with the overseas regulator4 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 FCA3 will at this stage determine the extent to which the representative of the overseas regulator4 will be able to participate in the interview. The overseas regulator4 will be notified of this determination on the issuing of the direction.

The direction will contain the identity of the representative of the overseas regulator4 that is permitted to attend any interview and the role that he will play in the interview. If the FCA3 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.

In circumstances where an interview is to be conducted as part of the investigation, the FCA's3 investigator will have conduct of the interview. In general, the FCA's3 investigators will be employees of the FCA3, but in appropriate cases the FCA3 may appoint persons who are not its employees. In those cases, the FCA3 may choose to require that an FCA3 employee is present at the interview and may choose to appoint that person as an investigator.

The FCA's3 investigator will act on behalf of the FCA3 and under its control. He may be instructed to permit the representative of the overseas regulator4 to assist in the preparation of the interview. Where the FCA3 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.

If the direction does permit the representative of an overseas regulator4 to attend the interview and ask the interviewee questions, the FCA's3 investigator will retain control of the interview throughout. Control of the interview means the following will apply:

1. (1)

   The FCA's3 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's3 investigator will always ask preliminary questions, such as those establishing the identity of the interviewee.

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2. (2)

   The FCA's3 investigator determines the duration of the interview and when, if at all, there should be any breaks in the course of it.

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3. (3)

   The FCA's3 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 regulator4 was either present or not present.

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4. (4)

   Where the FCA's3 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 regulator4 as to the conduct of the interview and the contents of this statement of policy.

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The FCA3 will in general provide written notice of the appointment of an investigator to the person under investigation pursuant to the request of an overseas regulator4 . Whether or not the interviewee is the person under investigation, the FCA's3 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 regulator4 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 FCA3 believes that the circumstances are such that notification would be likely to result in the investigation being frustrated.

The interviewee will normally be given a copy of the direction issued under section 169(7) or section 131FA2 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.

The FCA's3 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.

When the FCA's3 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 regulator4 . It will also state that in criminal proceedings or proceedings for market abuse the FCA3 will not use as evidence against the interviewee any information obtained under compulsion during the interview.

The FCA's3 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 regulator4 wishes to ask questions about documents during the interview and the FCA's3 investigator wishes to inspect those documents before the interview, he will be given the opportunity to do so. If the FCA's3 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.

When the FCA's3 investigator has exercised the compulsory interview power, the FCA's3 investigator will require the person attending the interview to answer questions. Where appropriate, questions may also be posed by the representative of the overseas regulator4 . The interviewee will also be required to answer these questions. The FCA's3 investigator may intervene at any stage during questioning by the representative of the overseas regulator4.

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 regulator4 then the translation costs will normally be met by the overseas regulator4. 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 regulator4.

All compulsory interviews will be tape-recorded. The method of recording will be decided on and arranged by the FCA's3 investigator. Costs will be addressed similarly to that set out in the preceding paragraph. The FCA3 will not provide the overseas regulator4 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.

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 FCA3. The presence at the interview of a representative of the overseas regulator4 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 FCA3 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.

In relation to the publication of investigations by overseas regulators4, the FCA3 will pursue a policy similar to the policy that relates to its own investigations.