ENF 2.10 Protected items, banking confidentiality, and admissibility

This section sets out additional provisions that apply to investigations generally.

Section 413 of the Act relates to protected items.

1. (1)

   Under section 413(1), a person may not be required under the Act to produce, disclose or allow inspection of protected items.

2. (2)

   Protected items are:

   1. (a)

      Communications between a professional legal adviser and his client or any person representing his client which falls within section 413(3);

   2. (b)

      Communications between a professional legal adviser, his client or any person representing his client and any other person that falls within section 413(3) (as a result of paragraph (b) of that subsection);

   3. (c)

      items which -

      1. (i)

         Are enclosed with, or referred to in, such communications;

      2. (ii)

         Fall within section 413(3); and

      3. (iii)

         Are in the possession of a person entitled to have them.

3. (3)

   A communication or item falls within section 413(3) if it is made:

   1. (a)

      in connection with the giving of legal advice to the client; or

   2. (b)

      in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings.

4. (4)

   However under section 413(4) a communication or item is not a protected item if it is held with the intention of furthering a criminal purpose.

5. (5)

   Also, under section 175(4) of the Act (Information and documents: supplemental provisions) a lawyer may be required to give the name and address of his client.

Under section 175(5) and section 284(8) (Power to investigate) of the Act, except in certain circumstances, no person may be required under Part XI (Information Gathering and Investigations) or section 284 of the Act to give information or produce a document in respect of which he owes an obligation of confidence by carrying on banking business. Those circumstances include, under section 175(5), circumstances where:

1. (1)

   the person to whom the obligation is owed is the person under investigation, or a related company; or

2. (2)

   the person to whom the duty is owed consents to its disclosure; or

3. (3)

   the requirement to disclose has been specifically authorised by the FSA.

Section 174 of the Act (Admissibility of statements made to investigators) relates to the admissibility of statements made by a person in compliance with information requirements imposed under sections 171 (Powers of persons appointed under section 167), 172 (Additional power of persons appointed as a result of section 168(1) or (4)), 173 (Powers of persons appointed as a result of section 168(2)), 175 or 284 of the Act, to an investigator appointed under section 167 (Appointment of persons to carry out general investigations), 168 (Appointment of persons to carry out investigations in particular cases) or 284 of the Act.

1. (1)

   Under section 174(1) a statement made to an investigator by a person complying with an information requirement can, in general, be used as evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.

2. (2)

   However, under section 174(2), such a statement cannot generally be used as evidence in criminal proceedings in which the person who made the statement is charged with an offence, or in proceedings in relation to action against a person under section 123 of the Act (Penalties for market abuse). Nevertheless this does not apply to the offences listed in section 174(3), such as making false statements or providing false or misleading evidence to the FSA's investigators. Where section 174(2) applies:

   1. (a)

      no evidence relating to the statement may be adduced; and

   2. (b)

      no questions relating to it may be asked;

   by the prosecution or the FSA, unless evidence relating to that statement is adduced, or a question relating to it is asked, by that person or on his behalf in the proceedings.

Statements made by a person to an investigator other than in compliance with an information requirement (such as statements made voluntarily) are not covered by section 174 and can be used as evidence in any proceedings subject to any requirements governing the admissibility of evidence in the circumstances in question.