ENF 2.14 The FSA's policy: interviews and interview procedures

As mentioned in ENF 2.11.2 G, the FSA may not always use its statutory powers to require individuals to be interviewed. If appropriate, the investigator will first seek to conduct interviews on a voluntary basis.

If the interviewee is the subject of the investigation, the investigator will make a record of the interview and the FSA will give a copy of the record to the interviewee. If the interviewee is not the subject of the investigation, the FSA will give the interviewee a record of the interview if one has been made by the investigator. The interviewee may be accompanied by a legal adviser, if he wishes.

Where the FSA does require a person to answer questions in interview, using its compulsory powers, it will:

1. (1)

   allow that person (whether or not he is the subject of the investigation) to be accompanied by a legal adviser, if he wishes;

2. (2)

   give the person an appropriate warning and an explanation of the limited use that can be made of his answers in criminal proceedings against him, or in proceedings in which the FSA seeks a penalty for market abuse under Part VIII of the Act (Penalties for Market Abuse); and

3. (3)

   give the person a record of the interview (in most cases this will be an audio tape recording).

Under sections 401 (Proceedings for offences) and 402 (Power of the FSA to institute proceedings for certain other offences) of the Act, the FSA is a prosecuting authority in England and Wales and Northern Ireland for a number of criminal offences. When conducting interviews with suspects for the purpose of obtaining evidence for use in criminal proceedings, investigators are subject (with appropriate adaptations) to the statutory requirements of the Police and Criminal Evidence Act 1984 (PACE) and its Codes, and of the Criminal Procedure and Investigations Act 1996. Individuals suspected of a criminal offence may therefore be interviewed under caution. These interviews will be subject to all the safeguards of PACE Code C and are entirely voluntary on the part of the suspects. The FSA will warn the suspect at the start of the interview of his right to remain silent (and the consequences of remaining silent) and will inform the suspect that he is entitled to have a legal adviser present.

If a suspect has already been interviewed by the FSA under compulsory powers, before he is interviewed under caution, the investigators will give him the transcript or other record of the compulsory interview and an explanation of the difference between the two types of interview. They will also tell the individual about the limited use that can be made of his previous answers in criminal proceedings or in proceedings in which the FSA seeks a penalty for market abuse under Part VIII of the Act.

Also, where a suspect has been interviewed under caution, and the FSA subsequently wishes to conduct a compulsory interview with him, the FSA will again explain the difference between the two types of interview, and will notify the individual of the limited use that can be made of his answers in the compulsory interview.

Guidance on the admissibility of statements made to investigators is set out at ENF 2.10.4 G to ENF 2.10.5 G.