ENF 2.4 Powers of FSA investigators

The nature and extent of an investigator's powers depend on the provision of the Act under which he was appointed.

1. (1)

   The powers of an investigator appointed under section 167 of the Act (Appointment of persons to carry out general investigations) are contained in section 171 (Powers of persons appointed under section 167) and 175 (Information and documents: supplemental provisions) of the Act and are described in ENF 2.4.2 G to ENF 2.4.5 G and ENF 2.4.10 G to ENF 2.4.12 G.

2. (2)

   The powers of an investigator appointed under section 168 of the Act (Appointment of persons to carry out investigations in particular cases) depend on whether he is appointed to investigate the matters listed in section 168(1) and (4) (see ENF 2.3.14 G (1) and ENF 2.3.14 G (3)) or those listed in section 168(2) (see ENF 2.3.14 G (2)):

   1. (a)

      the powers of an investigator appointed as a result of section 168(1) or (4) are contained in sections 172 (Additional power of persons appointed as a result of section 168(1) or (4)) and 175 (Information and documents: supplemental provisions) and are described in ENF 2.4.6 G to ENF 2.4.7 G and ENF 2.4.10 G to ENF 2.4.12 G;

   2. (b)

      The powers of an investigator appointed as a result of section 168(2) are contained in sections 173 (Powers of persons appointed as a result of section 168(2)) and 175 (Information and documents: supplemental provisions) and are described in ENF 2.4.8 G and ENF 2.4.10 G to ENF 2.4.12 G.

3. (3)

   The powers of an investigator (appointed under section 169 of the Act (Investigations etc. in support of overseas regulator) are the same as those of an investigator appointed as a result of section 168(1) (see ENF 2.4.9 G, ENF 2.4.6 G to ENF 2.4.7 G and ENF 2.4.10 G to ENF 2.4.12 G).

4. (4)

   The powers of an investigator appointed under section 284 of the Act (Power to investigate) are contained in section 284(3) and are described in ENF 2.4.13 G.

Section 171 states that an investigator conducting a general investigation under section 167 of the Act may require the person who is the subject of the investigation or any person connected with the person under investigation:

1. (1)

   to attend before the investigator at a specified time and place to answer questions; or

2. (2)

   otherwise to provide such information as the investigator may require.

Under section 171(2) the investigator may also require any person to produce at a specified time and place any specified documents or documents of a specified description.

However, under section 171(3), the investigator may only impose requirements referred to in ENF 2.4.2 G and ENF 2.4.3 G) so far as he reasonably considers the question, provision of information or production of the document to be relevant to the purposes of the investigation.

For the purposes of section 171 (see ENF 2.4.2 G) , a person is connected with the person under investigation ('A') if he is or has at any relevant time been:

1. (1)

   a member of A's group; or

2. (2)

   a controller of A; or

3. (3)

   a partnership of which A is a member; or

4. (4)

   in relation to A, a person mentioned in Part I or II of Schedule 15 to the Act (Information and Investigations: Connected Persons).

Section 172 states that an investigator appointed as a result of section 168(1) or (4) will have the powers given by section 171, which are described in ENF 2.4.2 G to ENF 2.4.5 G. Under section 172(2), he will also have the power to require a person who is not the subject of the investigation, nor a person connected with the person under investigation, to attend before him at a specified time and place and answer questions, or otherwise to provide such information as he may require, for the purposes of the investigation.

The investigator may only impose a requirement under section 172(2) if satisfied that this is necessary or expedient for the purposes of the investigation.

Section 173 sets out the powers of an investigator appointed as a result of section 168(2) (see ENF 2.3.14 G (2)). Under section 173, if an investigator considers that any person is or may be able to give information which is or may be relevant to the investigation, he may require that person:

1. (1)

   to attend before the investigator at a specified time and place and answer questions;

2. (2)

   otherwise to provide such information as the investigator may require for the purposes of the investigation;

3. (3)

   to produce at a specified time and place any specified documents or documents of a specified description which appear to the investigator to relate to any matter relevant to the investigation;

4. (4)

   to give the investigator all assistance in connection with the investigation which he is reasonably able to give.

Section 169(2) states that an investigator appointed in support of an overseas regulator under section 169(1)(b) has the same powers as an investigator appointed as a result of section 168(1) (see ENF 2.4.6 G to ENF 2.4.7 G and ENF 2.4.10 G to ENF 2.4.12 G).

Section 175 provides that if the FSA, or an investigator appointed by it under Section 167 or 168 of the Act, has the power to require a person to produce a document but that it appears that the document is in the possession of a third person, the FSA or investigator may use that power in relation to the third person.

Section 175(2) states that the person to whom the document is produced may take copies or extracts from the document, or require the person producing the document ('A') or any relevant person to provide an explanation of it. Under section 175(7) a relevant person means a person who:

1. (1)

   has been or is or is proposed to be a director or controller of A; or

2. (2)

   has been or is an auditor of A; or

3. (3)

   has been or is an actuary, accountant or lawyer appointed or instructed by A; or

4. (4)

   has been or is an employee of A.

Section 175(3) states that if a person who is required to produce a document fails to do so, the FSA or an investigator may require him to state, to the best of his knowledge and belief, where the document is. ENF 2.10.2 G explains the provisions of section 413 of the Act (Protected items) relating to communications or items that a person may not be required to produce, disclose, or allow to be inspected.

Section 284(3) states that if an investigator appointed under section 284 of the Act ('B') considers that a person ('C') is or may be able to give information which is relevant to the investigation, B may require C:

1. (1)

   to produce to B any documents in C's possession or under his control which appear to B to be relevant to the investigation;

2. (2)

   to attend before him; and

3. (3)

   Otherwise to give B all assistance in connection with the investigation which C is reasonably able to give; and

that it is C's duty to comply with that requirement.