FCA applications to enter premises using search warrants, under s176 FSMA

Joel M Benjamin made this Rhyddid Gwybodaeth request to The Financial Conduct Authority

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn rhannol lwyddiannus.

Dear The Financial Conduct Authority,

Since April 2013 – please confirm on how many occasions The FCA has sought to use its regulatory investigation powers under section 176 of FSMA to enter premises to undertake searches of regulated firms, and obtain evidence? https://www.legislation.gov.uk/ukpga/200...

For each occasion a formal request for a warrant has been made under s176 FSMA, please provide in MS Excel format:

1) The date and year of the application
2) The reason(s) for the application
3) The firm(s) to which the application applies
4) The outcome/decision of the magistrate to approve or deny the application

Yours faithfully,

Joel M Benjamin

The Financial Conduct Authority

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The Payment Systems Regulator Limited is registered as a limited company in England and Wales No. 8970864. Registered office: 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom

Switchboard 020 7066 1000

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Freedom of Information, The Financial Conduct Authority

1 Atodiad

Email:         [FCA request email]

 

 

Joel M Benjamin Date               19 August 2019

   

(By email) Our Ref:          FOI6633

   

 

 

 

 

Dear Mr Benjamin

 

Freedom of Information: Right to know request

 

We refer to your request under the Freedom of Information Act 2000 (“the
Act”) for the following information:

 

“Since April 2013 – please confirm on how many occasions The FCA has
sought to use its regulatory investigation powers under section 176 of
FSMA to enter premises to undertake searches of regulated firms, and
obtain evidence? https://www.legislation.gov.uk/ukpga/200...

 

For each occasion a formal request for a warrant has been made under s176
FSMA, please provide in MS Excel format:

 

1)       The date and year of the application

2)       The reason(s) for the application

3)       The firm(s) to which the application applies

4)       The outcome/decision of the magistrate to approve or deny the
application”

 

Your request is currently being considered and, in doing so, we are of the
view that the following qualified exemption under the Act may apply:

 

o section 31 (law enforcement)

 

This is because we consider that disclosure would, or would be likely to,
prejudice the exercise by the FCA of its functions under FSMA.

 

As this is the case, the FCA is required to weigh the public interest in
maintaining the exemption/s against the public interest in disclosing any
information.

 

By virtue of section 10(3), where public authorities have to consider the
balance of the public interest in relation to a request, they do not have
to comply with the request until such time as is reasonable in the
circumstances.  The FCA has not yet reached a decision on the balance of
the public interest.  Due to the need to consider, in all the
circumstances of the case, where the balance of the public interest lies
in relation to the information that you have requested, the FCA will not
be able to respond to your request in full within 20 working days.  In
these circumstances, we hope to be in a position to respond to you by 17
September 2019 although should we be in a position to contact you sooner
we will do so.

 

Yours sincerely

 

Information Disclosure Team

Financial Conduct Authority

 

[1]Description: cid:image001.png@01D2A7C9.64DDD390

 

Financial Conduct Authority

12 Endeavour Square

London

E20 1JN

www.fca.org.uk

 

This communication and any attachments may contain personal information.
For more information about how and why we use personal information and who
to contact with any queries about this, please see our privacy notices:
FCA Privacy Notice (https://www.fca.org.uk/data-protection) and PSR
Privacy Notice
(https://www.psr.org.uk/cookies-privacy-a...).

This communication and any attachments contain information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer. Further information
on the classification and handling of FCA information can be found on the
FCA website
(http://www.fca.org.uk/site-info/legal/fc...).

The FCA (or, if this email originates from the Payment Systems Regulator
Limited, the FCA on behalf of the Payment Systems Regulator Limited / the
Payment Systems Regulator Limited) reserves the right to monitor all email
communications for compliance with legal, regulatory and professional
standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from the
Financial Conduct Authority (FCA), or the Payment Systems Regulator
Limited.

The Financial Conduct Authority (FCA) is registered as a limited company
in England and Wales No. 1920623. Registered office: 12 Endeavour Square,
Stratford, London, E20 1JN, United Kingdom

The Payment Systems Regulator Limited is registered as a limited company
in England and Wales No. 8970864. Registered office: 12 Endeavour Square,
Stratford, London, E20 1JN, United Kingdom

Switchboard 020 7066 1000

Web Site http://www.fca.org.uk (FCA); http://www.psr.org.uk (the Payment
Systems Regulator Limited)

References

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Freedom of Information, The Financial Conduct Authority

1 Atodiad

Email: [1][FCA request email]

 

 

Mr Joel Benjamin

 

 

17 September 2019

Our Ref: FOI6633

Dear Mr Benjamin

 

Freedom of Information: Right to know request

 

We write further to our email on 19 August 2019 following your request
under the Freedom of Information Act 2000(“the Act”), for the following
information:

 

“Since April 2013 – please confirm on how many occasions The FCA has
sought to use its regulatory investigation powers under section 176 of
FSMA to enter premises to undertake searches of regulated firms, and
obtain evidence? https://www.legislation.gov.uk/ukpga/200...

 

For each occasion a formal request for a warrant has been made under s176
FSMA, please provide in MS Excel format:

 

1)     The date and year of the application

2)     The reason(s) for the application

3)     The firm(s) to which the application applies

4)     The outcome/decision of the magistrate to approve or deny the
application.”

 

When we wrote to you, we advised that we were considering Section 31 (Law
enforcement) of the Act, and that more time was needed for us to balance
the various public interest arguments, as required for the exercise of
these exemptions.

 

This exercise has now been completed.  We can provide some of the
information to you as outlined in the table below.  We are unable to
provide the names of two of the firms in response to question 3, as they
are the subject of ongoing investigations.  We therefore consider that
disclosure would, or would be likely to, prejudice the exercise by the FCA
of its functions for the purpose of ascertaining whether circumstances
which would justify regulatory action in pursuance of any enactment exist
or may arise.  Therefore, this information is exempt from disclosure under
section 31 (Law enforcement) of the Act and has been marked as sensitive
in the table below.

 

1) The date 3) The firm(s) to 4)The outcome/decision
and year of 2) The reason(s) for which the of the magistrate to
the the application application approve or deny the
application applies* application
Sep-15 s176(4) FSMA access UBS Granted
conditions met
Jan-16 s176(4) FSMA access [withheld under Granted
conditions met s.31]
Dec-17 s176(4) FSMA access [withheld under Granted
conditions met s.31]
* For clarity, the warrant permits entry to search the premises of an
authorised firm BUT the authorised firm was not the subject of the
criminal investigation.  For example, the investigation may relate to a
member of staff at the authorised firm. None of the firms were under
investigation by the FCA in relation to those search warrants.  

 

 

If you are unhappy with the decision made in relation to your request, you
have the right to request an internal review.  If you wish to exercise
this right you should contact us within forty working days of the date of
this response.

 

If you are not content with the outcome of the internal review, you also
have a right of appeal to the Information Commissioner at Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9
5AF. Telephone: 01625 545 700. Website: [2]www.ico.org.uk

 

 

Yours sincerely

Information Disclosure Team/ Cyber & Information Resilience Department

 

 

Financial Conduct Authority

12 Endeavour Square

London

E20 1JN

www.fca.org.uk

 

 

 

Annex A

 

 

·              Section 31 (Law enforcement)

 

The qualified exemption in section 31(1)(g) of the Act applies because,
disclosure of the information requested would, or would be likely to,
prejudice the exercise by the FCA of its functions for the purposes of
ascertaining whether circumstances exist or may arise which would justify
regulatory action in pursuance of any enactment.

 

This exemption applies to your request in that such information, if
disclosed now would, or would be likely to, prejudice any future enquiries
and/or action we may undertake.  This exemption is qualified and we have
balanced the public interest for and against disclosure as required by the
Act.

 

For disclosure

 

·              There is a strong public interest in favour of transparency
and in the public being reassured about the effectiveness of the
regulatory approach taken by the FCA and disclosure of the information
would demonstrate how the FCA responds to matters arising within the
sector it regulates.

 

·             Disclosure of the information would demonstrate how we
respond to matters arising within the markets we regulate and would enable
regulated firms to better understand why and how we make decisions on
regulatory matters.

 

·              Disclosure would also provide the public with information
to assist them in making decisions about their dealings, or potential
dealings, with the markets and firms that are operating in the financial
services sector.

 

Against disclosure

 

·              There is a strong public interest in the FCA being able to
carry out its functions in the most effective manner possible.  Disclosure
of the information could prejudice our ability to do this as it may cause
firms to act in a way that circumvents our regulatory process/es.

 

·              Disclosure of the information could lead to further
speculation which, in the absence of any further background information,
could be taken out of context and could lead to the wrong conclusions
being drawn in respect of our decision-making processes.

 

·              Disclosure could also affect the brand and reputation of
the relevant firms and/or entities in the absence of due process having
been followed – i.e. in the absence of any formal public announcement and
without the relevant firms and/or entities having had the opportunity to
comment.

 

On this occasion, and for the reasons set out above, we have concluded
that the balance of the public interest is in favour of maintaining the
exemption under section 31 of the Act.

 

 

 

 

 

 

This communication and any attachments may contain personal information.
For more information about how and why we use personal information and who
to contact with any queries about this, please see our privacy notices:
FCA Privacy Notice (https://www.fca.org.uk/data-protection) and PSR
Privacy Notice
(https://www.psr.org.uk/cookies-privacy-a...).

This communication and any attachments contain information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer. Further information
on the classification and handling of FCA information can be found on the
FCA website
(http://www.fca.org.uk/site-info/legal/fc...).

The FCA (or, if this email originates from the Payment Systems Regulator
Limited, the FCA on behalf of the Payment Systems Regulator Limited / the
Payment Systems Regulator Limited) reserves the right to monitor all email
communications for compliance with legal, regulatory and professional
standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from the
Financial Conduct Authority (FCA), or the Payment Systems Regulator
Limited.

The Financial Conduct Authority (FCA) is registered as a limited company
in England and Wales No. 1920623. Registered office: 12 Endeavour Square,
Stratford, London, E20 1JN, United Kingdom

The Payment Systems Regulator Limited is registered as a limited company
in England and Wales No. 8970864. Registered office: 12 Endeavour Square,
Stratford, London, E20 1JN, United Kingdom

Switchboard 020 7066 1000

Web Site http://www.fca.org.uk (FCA); http://www.psr.org.uk (the Payment
Systems Regulator Limited)

References

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1. mailto:[FCA request email]
2. http://www.ico.org.uk/