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EG 4.7 2Use of statutory powers to require the production of documents, the provision of information or the answering of questions

EG 4.7.1

2The FCA's standard practice is generally to use statutory powers to require the production of documents, the provision of information or the answering of questions in interview. This is for reasons of fairness, transparency and efficiency. It will sometimes be appropriate to depart from this standard practice, for example:

  1. (1)

    For suspects or possible suspects in criminal or market abuse investigations, the FCA may prefer to question that person on a voluntary basis, possibly under caution. In such a case, the interviewee does not have to answer but if they do, those answers may be used against them in subsequent proceedings, including criminal or market abuse proceedings.

  2. (2)

    In the case of third parties with no professional connection with the financial services industry, such as the victims of an alleged fraud or misconduct, the FCA will usually seek information voluntarily.

  3. (3)

    In some cases, the FCA is asked by overseas regulators or EEA regulators to obtain documents or conduct interviews on their behalf. In these cases, the FCA will not necessarily adopt its standard approach as it will consider with the overseas regulator or EEA regulator the most appropriate method for obtaining evidence for use in their country.

EG 4.7.2

Firms, approved persons and conduct rules staff1 have an obligation to be open and co-operative with the FCA (as a result of Principle 11 for Businesses,1 Statement of Principle 4 for Approved Persons and Rule 3 of COCON 2.11). The FCA will make it clear to the person concerned whether it requires them to produce information or answer questions under the Act or whether the provision of answers is purely voluntary. The fact that the person concerned may be a regulated person does not affect this.

2
EG 4.7.3

2The FCA will not bring disciplinary proceedings against a person for failing to be open and co-operative with the FCA1 simply because, during an investigation, they choose not to attend or answer questions at a purely voluntary interview. However, there may be circumstances in which an adverse inference may be drawn from the reluctance of a person (whether or not they are a firm or individual1) to participate in a voluntary interview. If a person provides the FCA with misleading or untrue information, the FCA may consider taking action against them.1

EG 4.7.4

2If a person does not comply with a requirement imposed by the exercise of statutory powers, they may be held to be in contempt of court. The FCA may also choose to bring proceedings for breach of Principle 11,1 Statement of Principle 4 or COCON 2.1.3R1 as this is a serious form of non-cooperation.