DEPP 7
Statement
of policy on section 169(7) interviews
DEPP 7.1
Application and purpose
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Application
DEPP 7.1.1
See Notes
DEPP 7 applies when the
FSA
:
(1) has appointed an investigator at
the request of an overseas regulator,
under section 169(1)(b) (Assistance to overseas regulators) of the Act;
and
(2) has directed, or is considering
directing, the investigator, under section 169(7) of the Act,
to permit a representative of the overseas
regulator to attend, and take part in, any interview conducted for the
purposes of the investigation.
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DEPP 7.1.2
See Notes
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Purpose
DEPP 7.1.3
See Notes
The purpose of DEPP 7 is to set out the
FSA's statement of policy on the conduct of interviews to which a direction
under section 169(7) has been given or the
FSA
is considering giving. The
FSA
is required to prepare and publish this statement of policy by
section 169(9) and (11) of the Act.
As required by section 169(10) of the Act, the Treasury has approved
the statement of policy.
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DEPP 7.1.4
See Notes
The
FSA
is keen to promote co-operation with overseas
regulators. It views provision of assistance
to overseas regulators as an essential part of the principles
set out in section 2(3)(e) of the Act to
which it must have regard in discharging its general functions.
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DEPP 7.2
Interviews
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Appointment of investigator and confidentiality of information
DEPP 7.2.1
See Notes
Under section 169(1)(b) of the Act,
the
FSA
may
appoint an investigator to investigate any matter at the request of an overseas regulator. The powers of the investigator appointed by the
FSA
(referred to here as the 'FSA's investigator') include the power to require persons to
attend at a specified time and place and answer questions (the compulsory
interview power).
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DEPP 7.2.2
See Notes
Where the
FSA
appoints an investigator in response to a request from an overseas regulator it may, under section 169(7) of the Act,
direct him to permit a representative of that regulator to attend and take
part in any interviews conducted for the purposes of the investigation. The
FSA
may
only give a direction under section 169(7) if it is satisfied that any information
obtained by an overseas regulator as a result of the interview will
be subject to the safeguards equivalent to those contained in Part XXIII (Public
Record, Disclosure of Information and Cooperation) of the Act.
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DEPP 7.2.3
See Notes
Part XXIII of the Act contains restrictions on the disclosure
of confidential information. The restrictions are subject to exceptions contained
in regulations made by the Treasury under section 349.
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Policy on use of investigative powers
DEPP 7.2.4
See Notes
The
FSA's
policy on how it will use its investigative powers, including
its power to appoint investigators, in support of overseas
regulators, is set out in the
FSA's
Enforcement Guide (EG).
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Use of direction powers
DEPP 7.2.5
See Notes
The
FSA
may need to consider whether to use its direction power at two
stages of an investigation:
(1) at the same time that it considers
the request from the overseas regulator to appoint investigators;
(2) after it has appointed investigators,
either at the request of the overseas regulator or on the recommendation of the
investigators.
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DEPP 7.2.6
See Notes
Before making a direction under
section 169(7) the
FSA
will discuss and determine with the overseas
regulator how this statement of policy will
apply to the conduct of the interview, taking into account all the circumstances
of the case. Amongst other matters, the
FSA
will at this stage determine the extent to which the representative
of the overseas regulator will be able to participate in
the interview. The overseas regulator will be notified of this determination
on the issuing of the direction.
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DEPP 7.2.7
See Notes
The direction will contain the
identity of the representative of the overseas
regulator that is permitted to attend any
interview and the role that he will play in the interview. If the
FSA
envisages that there will be more than one interview in the course
of the investigation, the direction may also specify which interview(s) the overseas representative is allowed to attend.
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Conduct of interview
DEPP 7.2.8
See Notes
In circumstances where an interview
is to be conducted as part of the investigation, the
FSA's
investigator will have conduct of the interview. In general,
the
FSA's
investigators
will be employees of the
FSA
, but in appropriate cases the
FSA
may appoint persons who
are not its employees. In those cases, the
FSA
may choose to require that an
FSA
employee is present at the interview and may choose to appoint
that person as an investigator.
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DEPP 7.2.9
See Notes
The
FSA's
investigator will act on behalf of the
FSA
and under its control. He may be instructed to permit the representative
of the overseas regulator to assist in the preparation of
the interview. Where the
FSA
considers it appropriate, it may permit the representative to
attend and ask questions of the interviewee in the course of the interview.
The interview will be conducted according to the terms of the direction and
the notification referred to in DEPP 7.2.6 G.
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DEPP 7.2.10
See Notes
If the direction does permit the
representative of an overseas regulator to attend the interview and ask
the interviewee questions, the
FSA's
investigator will retain control of the interview throughout.
Control of the interview means the following will apply:
(1) The
FSA's
investigator instigates and concludes the interview, introduces
everyone present and explains the procedure of the interview. He warns the
interviewee of the possible consequences of refusing to answer questions and
the uses to which any answers that are given can and cannot be put. The
FSA's
investigator
will always ask preliminary questions, such as those establishing the identity
of the interviewee.
(2) The
FSA's
investigator determines the duration of the interview and when,
if at all, there should be any breaks in the course of it.
(3) The
FSA's
investigator has responsibility for making a record of the interview.
The record should note the times and duration of any breaks in the interview
and any periods when the representative of the overseas
regulator was either present or not present.
(4) Where the
FSA's
investigator considers it appropriate, he may either suspend
the interview, ask the overseas representative to leave the interview, or
terminate the interview and reschedule it for another occasion. In making
that decision he will bear in mind the terms of the direction, any agreement
made with the overseas regulator as to the conduct of the interview
and the contents of this statement of policy.
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DEPP 7.2.11
See Notes
The
FSA
will in general provide written notice of the appointment of
an investigator to the person under
investigation pursuant to the request of an overseas
regulator. Whether or not the interviewee
is the person under investigation,
the
FSA's
investigator
will inform the interviewee of the provisions under which he has been appointed,
the identity of the requesting authority and general nature of the matter
under investigation. The interviewee will also normally be informed if a representative
of the overseas regulator is to attend and take part in
the interview. Notification of any of these matters may not be provided in
advance of the interview if the
FSA
believes that the circumstances are such that notification would
be likely to result in the investigation being frustrated.
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DEPP 7.2.12
See Notes
The interviewee will normally be
given a copy of the direction issued under section 169(7) in advance of the interview unless
to do so would be likely to result in the investigation being frustrated.
The interviewee will also be provided with a copy of this statement of policy.
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DEPP 7.2.13
See Notes
The
FSA's
investigator will determine the venue and timing of the interview.
The interviewee will be notified of the venue and timing of the interview
in advance and in writing.
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DEPP 7.2.14
See Notes
When the
FSA's
investigator has exercised the compulsory interview power, at
the outset of the interview the interviewee will be given an appropriate warning.
The warning, amongst other things, must state that the interviewee is obliged
to answer all questions put to them during the interview, including any put
by the representative of the overseas regulator. It will also state that in criminal
proceedings or proceedings for market abuse the
FSA
will
not use as evidence against the interviewee any information obtained under
compulsion during the interview.
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DEPP 7.2.15
See Notes
The
FSA's
investigator may decide which documents or other information
may be put to the interviewee, and whether it is appropriate to give the interviewee
sight of the documents before
the interview takes place. Where the overseas
regulator wishes to ask questions about documents during the interview and the
FSA's
investigator
wishes to inspect those documents before
the interview, he will be given the opportunity to do so. If the
FSA's
investigator wishes to inspect them and has not been able to
do so before the interview, he may suspend the interview until he has had
an opportunity to inspect them.
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DEPP 7.2.16
See Notes
When the
FSA's
investigator has exercised the compulsory interview power, the
FSA's
investigator
will require the person attending
the interview to answer questions. Where appropriate, questions may also be
posed by the representative of the overseas
regulator. The interviewee will also be
required to answer these questions. The
FSA's
investigator may intervene at any stage during questioning by
the representative of the overseas regulator.
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Language
DEPP 7.2.17
See Notes
Interviews will, in general, be
conducted in English. Where the interviewee's first language is not English,
at the request of the interviewee arrangements will be made for the questions
to be translated into the interviewee's first language and for his answers
to be translated back into English. If a translator is employed at the request
of the representative of the overseas regulator then the translation costs will
normally be met by the overseas regulator. Where interviews are being conducted
in pursuance of a
Community obligation these costs will be met by the
FSA
. In any event, the meeting of costs in relation to translators
and, where applicable, the translation of documents will
always be agreed in advance with the overseas
regulator.
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Tape-recording
DEPP 7.2.18
See Notes
All compulsory interviews will
be tape-recorded. The method of recording will be decided on and arranged
by the
FSA's
investigator.
Costs will be addressed similarly to that set out in the preceding paragraph.
The
FSA
will
not provide the overseas regulator with transcripts of the tapes
of interviews unless specifically agreed to, but copies of the tapes will
normally be provided where requested. The interviewee will be provided with
a copy of tapes of the interview but will only be provided with transcripts
of the tapes or translations of any transcripts if he agrees to meet the cost
of producing them.
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Representation
DEPP 7.2.19
See Notes
The interviewee may be accompanied
at the interview by a legal adviser or a non-legally qualified observer of
his choice. The costs of any representation will not be met by the
FSA
. The
presence at the interview of a representative of the overseas
regulator may mean that the interviewee
wishes to be represented or accompanied by a person either
from or familiar with that regulator's jurisdiction. As far as practical the
arrangements for the interview should accommodate this wish. However, the
FSA
reserves
the right to proceed with the interview if it is not possible to find such
a person within a reasonable
time or no such person is able
to attend at a suitable venue.
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DEPP 7.2.20
See Notes
In relation to the publication
of investigations by overseas regulators, the
FSA
will pursue a policy similar to the policy that relates to its
own investigations.
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