In a speech on 20 September 2017, Mark Steward outlined some trends in FCA enforcement, and gave some indications about the future.
In a sense, the speech re-iterated some trends known to enforcement watchers already. For example, he spoke about Andrew Green QC's findings in the HBOS Report and the impact that had on the FCA's thinking about when to commence investigations (see elsewhere in this edition Symington outlines the FCA's approach to investigations). Nevertheless, there were certain aspects that we thought readers may be particularly interested for us to highlight:
- There has been approximately a 75% increase in the number of FCA investigations over the past year. This is not only due to the new approach following Green. It is also due to more investigations into capital market disclosures and to a better market view brought about by the MAR extension in scope to the reporting regime for firms.
- The increase in investigation work is highly unlikely to lead to additional resourcing. Instinctively, Steward did not think it should and, pragmatically, in light of Brexit and other work, it was not remotely feasible.
- Instead, the challenge was for the FCA to become a lot more efficient, strategic and focussed, especially in conducting investigations more quickly and expediently.
- The FCA should investigate where it suspected "serious" misconduct. This meant where circumstances gave rise to real harm or real risk of harm caused by suspected misconduct. In its market facing work (this was his audience), this would typically include insider dealing or other market abuse, poor disclosure affecting the integrity of markets and, importantly, circumstances where market integrity may be harmed by financial crime.
- The new data the FCA was collecting under MAR and the data it would collect under MiFID II was described by Steward as a sea change in the FCA's ability to view the whole market.
- Those not ready for day one of MiFID II on 3 January 2018 needed to know that the FCA would act proportionately in terms of enforcement. In other words, there would not be a strict liability approach. The FCA had no intention of taking enforcement action for not meeting all requirements straight away where there was evidence of taking sufficient steps to meet the new obligations by 3 January. On the other hand, the position was different for those who had made no real or genuine attempt to be ready.