On 12 October 2023, the Financial Conduct Authority ('FCA') published a Decision Notice against the former CEO of Barclays, James Staley, imposing a fine of £1,812,800 and prohibiting him from performing any senior management or significant influence functions in the financial services industry. The FCA's decision related to Mr Staley's approval of a letter, sent by Barclays to the FCA, which the FCA found contained misleading statements about the nature of Mr Staley's relationship with Jeffrey Epstein.
Mr Staley has referred his Decision Notice to the Upper Tribunal.
In 2008 Mr Epstein was convicted by a Florida Court of procuring a minor for prostitution and sentenced to 18 months in prison then later arrested in July 2019 on a number of federal charges including trafficking minors for sex.
In August 2019, the FCA asked Barclays to explain in writing how it had satisfied itself that there was no impropriety in Mr Staley's relationship with Mr Epstein. In a letter approved by Mr Staley, Barclays wrote to the FCA in October 2019 and stated, amongst other things, that "[Mr Staley] has confirmed to us that he did not have a close relationship with Mr Epstein… [Mr Staley's] last contact with Mr Epstein was well before he joined Barclays in 2015."
The FCA ultimately determined that these two statements were misleading and, as a result, Mr Staley failed to act with integrity (Individual Conduct Rule ('ICR') 1), was not open and cooperative with the regulators (ICR 3) and failed to disclose information in respect of which the regulators would reasonably expect notice (Senior Manager Conduct Rule 4).
Statement 1: The nature of Mr Staley's relationship with Mr Epstein
In emails between Mr Staley and Mr Epstein in the period 2008 and 2015, Mr Staley described the strength of their friendship, referring to Mr Epstein as one of his “deepest” or “most cherished” friends and that he had few friendships as “profound” as his with Mr Epstein.
Mr Staley also visited several of Mr Epstein's properties, including his island in the US Virgin Islands on three separate occasions, with the last visit taking place in April 2015, and attended Mr Epstein's birthday dinner party in Palm Beach, Florida. The FCA determined that these visits in particular were for no obvious business reasons.
The FCA's assessment of Mr Staley's interactions with Mr Epstein led it to conclude that the two had a much closer relationship than Mr Staley indicated and that the statement in the Barclays letter about the nature of their relationship was therefore misleading. The FCA made it clear that it made no finding that Mr Staley had any knowledge of Mr Epstein's criminal activities.
Statement 2: The period of contact between Mr Staley and Mr Epstein
Between July 2008 and October 2015 Mr Staley and Mr Epstein exchanged more than 1,700 emails, 600 of which were exchanged between 2013 and the days leading up to Mr Staley's appointment as CEO of Barclays being announced in October 2015. In the emails exchanged between them, Mr Staley discussed his potential appointment as the CEO of Barclays with Mr Epstein as well as press enquiries about their relationship.
The FCA found that this contact during the period leading up to the announcement of Mr Staley's appointment meant that the statement that Mr Staley's last contact with Mr Epstein was well before he joined Barclays, was misleading and inaccurate. The email exchanges clearly showed that he had ongoing contact with Mr Epstein until October 2015.
In the FCA's related press release, Therese Chambers, joint Executive Director of Enforcement and Market Oversight, said:
"A CEO needs to exercise sound judgement and set an example to staff at their firm. Mr Staley failed to do this. We consider that he misled both the FCA and the Barclays Board about the nature of his relationship with Mr Epstein… It is right to prevent him from holding a senior position in the financial services industry if we cannot rely on him to act with integrity by disclosing uncomfortable truths about his close personal relationship with Mr Epstein."
It is apparent from the summary of the representations made by Mr Staley (contained in Annex C of the Decision Notice) that there is a major difference of opinion regarding the nature of the FCA's August 2019 enquiries. Mr Staley states that the FCA's focus was limited to what Barclays had done to satisfy itself that Mr Staley had not participated in or been aware of Mr Epstein's alleged criminal activities and it is through that lens, says Mr Staley, that the letter from Barclays to the FCA was drafted. The FCA, on the other hand, say that their enquiry was broader than that and Barclays and Mr Staley clearly understood that at the time.
However, perhaps more interesting to note is that this is a case that arose from the FCA's desire to probe the personal relationship between two individuals. Whilst this may be an unusual case because of the very serious issues underpinning it, there are certainly questions around the extent to which the FCA should be probing into an individual's personal relationships. Whatever questions the FCA does ask, they need to be answered in a candid way or unpleasant consequences can follow. If the Upper Tribunal finds against Mr Staley, this would not be the first time that the way an issue is dealt with may end up proving far more harmful for an individual than confronting the issue head on would have done.