This increased level of inter-agency cooperation echoes the FCA's 2023/24 Business Plan, which refers to wide-ranging cooperation between the FCA, global regulators and domestic partners to deliver their intended objectives.
Key takeaways from the June 2023 MoU
The FCA and SFO's main purpose is to detail a framework setting out accepted modes of communication, areas of mutual interest and general information sharing between the two regulators. We set out below some key takeaways from the new MoU.
Modes of communication
The June 2023 MoU states that senior leaders from the SFO and FCA's Enforcement and Market Oversight Division will regularly meet to discuss matters of key importance regarding strategy, policy and joint collaboration generally. Such meetings will also include discussions around high profile and mutual interest cases. The MoU notes that both regulators will seek to ensure:
- the effective and consistent discharge of their functions through cooperation and co-ordinated enforcement action to the extent permitted by law;
- that any enforcement action is proportionate, consistent and targeted;
- the approach to working together is consistent and coordinated in relation to relevant investigations and enforcement actions; and
- decisions about taking enforcement action and by whom are made as early as possible having regard to expertise, knowledge, priorities, powers and the extent of the misconduct.
Areas of mutual interest
The FCA and SFO agreed to notify one another at the earliest opportunity of any investigation or pre-investigation matter of mutual interest. The two agencies will discuss at the outset whether a joint investigation or parallel investigations should be commenced and will notify each other of any significant developments in their respective investigations.
According to the MoU, the FCA will consult with the SFO in matters of mutual interest before settling a case or proceeding to Warning Notice stage in order to allow the SFO to consider whether the FCA should stay proceedings or forgo settling at that time. The SFO is also entitled to request that the FCA stay the regulatory process or does not settle matters.
Information sharing and Confidentiality
Pro-active information sharing between the FCA and SFO will take place only to the extent permitted by law. The two agencies will exchange, as appropriate, information and documents relevant to the discharge of one another's functions.
Concerning confidentiality issues, the two agencies undertake only to use the information and documents provided to them for the purpose intended at the time of disclosure or as set out in their respective requests, unless otherwise agreed.
The SFO and FCA further confirmed they would not use and/or disclose information gathered in this way to any third party, either in the UK or overseas.
Public statements
During the course of an investigation, the FCA and SFO will always consult each other before making any public statements or issuing communications about any investigation where the other agency is providing assistance, or might otherwise have an interest. This is to allow the other agency to make representations and avoid prejudice to one another's investigations.
Conclusion
The publication of the 2023 MoU acts as a timely reminder that the FCA and SFO are increasingly collaborating to strengthen their resources and intelligence gathering capabilities to deliver their respective objectives.
Whilst the SFO and FCA each have a unique role and are independent of each other, the June 2023 MoU reiterates the agencies' intention to strengthen their collaboration in order to fulfil their regulatory objectives and tackle financial crime. Firms can therefore expect increased and coordinated scrutiny from both in the months and years to come.
