June 29, 2023

SFO and FCA publish principles of cooperation

The UK’s Serious Fraud Office and the Financial Conduct Authority have issued a joint statement aimed at establishing principles for ongoing cooperation.  The joint statement requires the SFO and FCA to meet regularly to discuss strategy, policy and ongoing collaboration.  Topics of discussion will include the status of ongoing investigations for cases of mutual interest where one organization is assisting the other.  At the same time, clear channels of communication will be maintained, and the organizations will notify one another of investigations or pre-investigations of mutual interest, discuss the need for a joint investigation (where a single case team spans both agencies) or parallel investigations (where each agency maintains its own case team but information about the related investigations is shared throughout).  For parallel investigations, updates are to be communicated regularly, and will include information about plans to notify subjects of an investigation, request documents, execute search warrants, interview key witnesses, and institute proceedings.  Pursuant to the principles of cooperation, the SFO may request in writing that the FCA stay a regulatory process or refrain from settling a matter.

Information sharing pursuant to the principles of cooperation will be consistent with the function of each organization, and subject to the applicable law, including provisions of the UK General Data Protection Regulation, the Data Protection Act 2018, the Criminal Justice Act 1987 (“CJA”), and the Financial Services and Markets Act 2000 (“FSMA”).  With regard to information provided by the FCA, compliance with sections 348 and 349 of the FSMA is of particular importance.  Section 348 requires that consent be obtained for the disclosure of confidential information unless a statutory gateway applies – generally speaking, Regulations 3 and 4 of the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001.  With respect to information provided by the SFO, Section 3 of the CJA is most relevant.

The joint document sets down a mechanism for information requests between the FCA and SFO, but also allows for unsolicited assistance to be provided without prior request.

The document also covers confidentiality and permissible use issues by outlining the confidential treatment that will be given by the FCA and SFO to non-public information, and applicable exceptions such as public interest immunity.  Information will be retained and disposed of in accordance with each agency’s review, retention and disposal policy.  The SFO and FCA commit to consulting with one another prior to publishing information about an investigation or prosecution.

The jointly-issued statement of cooperation replaces the joint protocol entered into by the SFO and FCA in May 2014.