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Enforcement by any other name? - the FCA's evolving approach to investigation

In a speech at the Legal Week Banking Litigation and Regulation Forum yesterday, Jamie Symington, FCA Director of Investigations, outlined a change in the Enforcement Department's approach.

This follows the FCA's Mission Statement and other FCA speeches suggesting a widening of Enforcement's view of its remit to protect customers and maintain confidence in markets.

Following Enforcement's high profile performance on the rate setting and forex scandals of recent years, yielding a positive feast of enforcement issues, the Department's profile has slipped to less prominence.

There was also public concern that ultimately no individuals were held to account for the HBOS failings, culminating in Andrew Green QC being appointed to look into this. His report criticised the culture in Enforcement as, to put it colloquially, being focussed on 'heads on sticks', at the expense of pursuing more difficult cases in the public interest.

Jamie Symington's speech seems to be setting out the department's response. The new emphasis is that Enforcement will no longer measure its successes in levels of fines (or newspaper headlines) but in cultural change, achieved through working with Supervision and with greater focus on individual conduct.

There is no doubt that the focus has shifted to individual accountability (at the heart of the Senior Managers Regime), bringing with it new challenges for those defending individuals and challenging Enforcement to ensure that processes are thorough and fair.

However the FCA's Enforcement Department is a capable and effective resource, with an array of powerful tools at its disposal. So it seems eminently sensible, while there is a lull in the seemingly endless scandals generated in London's financial markets, to deploy the 'big guns' in support of the FCA's increasingly stretched supervision work.

The greater focus on change signals a less adversarial approach and could mean that firms which make a genuine change to their conduct and culture might avoid disciplinary action. Jamie Symington said in his speech that "it is likely that proportionally fewer of our investigations will progress to disciplinary and enforcement action."

However this could lead to longer investigations, as Enforcement will want to stick around to see that change has been thoroughly embedded and conduct improved, rather than packing up once they have gathered enough evidence to pursue disciplinary action.

So far so good, we can only wait and see whether there has been a genuine change of heart where it matters.

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