ENF 21.3 The FSA's policy on appointing an investigator, use of investigation powers and control of investigations

The FSA's primary aim when appointing an investigator will be to confirm whether a provision of Part VI of the Act (sections 85 and 87G) or Part 6 rules or a provision otherwise made in accordance with the Prospectus Directive have been complied with and, if they have not, to determine the nature and extent of any breach. The FSA will usually appoint a member of FSA staff as an investigator, as allowed by section 170(5) of the Act.

The FSA may be alerted to possible breaches by complaints from the public or investors, by referrals from prosecuting authorities or through its information gathering activities. It will assess on a case by case basis whether to carry out a formal investigation, after considering all the available information. Factors it will take into account are:

1. (1)

   the elements of the suspected breach;

2. (2)

   whether the FSA considers that the persons concerned are willing to co-operate with it;

3. (3)

   whether obligations of confidentiality inhibit individuals from providing information without the FSA having recourse to its formal powers;

4. (4)

   evidence and information needed to substantiate any suspected breach;

5. (5)

   availability and accessibility of related information or evidence; and

6. (6)

   any other factors (so far as the FSA considers them to be applicable).

The FSA's policy on the use of powers by investigators appointed under section 97 is the same as that described in ENF 2.11.1 G to ENF 2.11.2 G in the context of investigators appointed by the FSA under powers contained in other Parts of the Act.

The FSA has powers under section 170 of the Act to control and direct investigators appointed under section 97 (see ENF 2.11.4 G and ENF 2.11.5 G for a summary of the powers under sections 170(7) and (8)).