Financial Services and Markets Act 2000, section 170

Investigations: general

Part XI Information Gathering and Investigations

(1) This section applies if an investigating authority appoints one or more competent persons (“investigators”) under section 167 or 168(3) or (5) to conduct an investigation on its behalf.

(2) The investigating authority must give written notice of the appointment of an investigator to the person who is the subject of the investigation (“the person under investigation”).

(3)Subsections (2) and (9) do not apply if —

(a)the investigator is appointed as a result of section 168(1) [F1350, (4) or (4B)F1350] and the investigating authority believes that the notice required by subsection (2) or (9) would be likely to result in the investigation being frustrated; or

(b)the investigator is appointed as a result of subsection (2) of section 168.

(4)A notice under subsection (2) must—

(a)specify the provisions under which, and as a result of which, the investigator was appointed; and

(b)state the reason for his appointment.

(5)Nothing prevents the investigating authority from appointing a person who is a member of its staff as an investigator.

(6)An investigator must make a report of his investigation to the investigating authority.

(7)The investigating authority may, by a direction to an investigator, control—

(a)the scope of the investigation;

(b)the period during which the investigation is to be conducted;

(c)the conduct of the investigation; and

(d)the reporting of the investigation.

(8)A direction may, in particular—

(a)confine the investigation to particular matters;

(b)extend the investigation to additional matters;

(c)require the investigator to discontinue the investigation or to take only such steps as are specified in the direction;

(d)require the investigator to make such interim reports as are so specified.

(9)If there is a change in the scope or conduct of the investigation and, in the opinion of the investigating authority, the person subject to investigation is likely to be significantly prejudiced by not being made aware of it, that person must be given written notice of the change.

(10) “Investigating authority”, in relation to an investigator, means—

[F1351 (a)the FCA, if the FCA appointed the investigator;

(aa)the PRA, if the PRA appointed the investigator;

(b)the Secretary of State, if the Secretary of State appointed the investigator.F1351]

Read section 170 in the full Act → Definitions (3) Cases (7)

Definitions used in section 170

Specified

(5) “Specified” means specified in an order made by the Treasury.

Defined in s.22(5) · see it in the full Act
the FCA

(2) The Financial Conduct Authority is in this Act referred to as “the FCA”.

Defined in s.1A(2) · see it in the full Act

“the FCA” means the Financial Conduct Authority;

Defined in s.417(1) · see it in the full Act
the PRA

“the PRA” means the Prudential Regulation Authority;

Defined in s.417(1) · see it in the full Act

Cases considering section 170 (7)

Financial Services Authority (FSA) & Ors v Amro International SA & Ors

[2010] EWCA Civ 123 · 24 February 2010Disapplies

The court interpreted section 170 as applying to investigators appointed under section 168(3) or (5), not investigators appointed under section 169. The absence of a section 170(2) notice therefore did not invalidate the appointment. (see paras [44]-[45]) The court held that the notice requirement in section 170(2) did not apply to investigators appointed under section 169. The lack of such a notice was immaterial. (see paras [44]-[45])

Secretary of State for Business Enterprise & Regulatory Reform v Aaron & Ors

[2008] EWCA Civ 1146 · 16 October 2008

A report made under this provision by investigators appointed under sections 167 and 168 was statutory investigative material. Its factual findings and opinions were admissible as prima facie evidence in the disqualification proceedings (see paras [1]; [6]; [29]-[32]).

Grout, R (On the Application Of) v Financial Conduct Authority

[2015] EWHC 596 (Admin) · 9 March 2015Defines

The court identified section 170(7) as conferring power to control the scope, period, conduct and reporting of an investigation. That power supported the FCA’s ability to direct the termination of the investigation (see paras [23]-[24]). The court noted that section 170(8) permits an investigation to be confined to particular matters. It formed part of the statutory framework demonstrating the breadth of the FCA’s control over an investigation (see para [23]). The court noted that section 170(8) permits an investigation to be extended to additional matters. It formed part of the statutory framework demonstrating the breadth of the FCA’s control over an investigation (see para [23]). The court relied on section 170(8)(c), which expressly permits the investigating authority to require an investigator to discontinue an investigation or take only specified steps. This was the statutory power challenged in the claim (see paras [23]-[24]). The court noted that section 170(8)(d) permits interim reports to be required during an investigation. It formed part of the statutory framework demonstrating the breadth of the FCA’s control over an investigation (see para [23]).

What each judgment says about section 170 is in the case-law panel in the full Act.

Explanatory note

330.Where an investigation has been launched into a person under section 167 or 168, the Authority or the Secretary of State (whichever is the investigating authority) must notify that person that the investigator has been appointed..  They must also inform the person under investigation of the reason for the appointment, and the particular provisions of the Act under which the appointment has been made.

331.However no notification is needed for investigations under section 168 into possible insider dealing, market abuse or misleading statements and practices, or into contraventions of the general prohibition under section 19, the financial promotion prohibition under section 21 or the prohibition on promoting collective investment schemes under section 238, since in those cases the investigator may not know the identity of the perpetrator or may be looking into market circumstances at the outset of the investigation rather than investigating a particular person.  Nor is notification required if the investigating authority believes that it would be likely to result in the investigation being frustrated.

332.Subsection (5) allows employees of the investigating authority to act as investigators under this Part of the Act.

333.Subsections (7) and (8) allow the investigating authority to control the scope, timetable and form of the investigation by issuing directions to the investigator(s).  Any directions must be notified to the person under investigation under subsection (9) except for those types of investigation where initial notice is not required, or where the investigating authority believes that notification would be likely to result in the investigation being frustrated.

All the explanatory notes for the Act

Amendments and notes

10 notes from legislation.gov.uk

Amendments

  1. F1350Words in s. 170(3)(a) substituted (14.1.2025) by The Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2025 (S.I. 2025/22), reg. 1(2), Sch. para. 10
  2. F1351S. 170(10)(a)-(b) substituted for s. 170(10)(a)(b) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 11 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications

  1. C730S. 170 applied (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), regs. 1, 71(2)(b)
  2. C731S. 170 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(f) (with Pt. 4)
  3. C732S. 170 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(4)(d)
  4. C733Ss. 170-175 applied (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 1(j) (with art. 11)
  5. C734S. 170 applied (with modifications) (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by The Short Selling Regulations 2025 (S.I. 2025/29), regs. 2(2)(3), 24, 25, Sch. 1 Pts. 1, 2; S.I. 2026/587, reg. 2(b)
  6. C735S. 170(1)(2) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14
  7. C736S. 170(4)-(8) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14
  8. C737S. 170(5)-(9) applied (1.12.2001 for E.W.S. and 1.11.2004 for N.I.) by S.I. 2001/1228, regs. 1(2)(c), 30(4) (with 1(2)(3)); S.I. 2001/3538, art. 2(1); S.R. 2004/335, regs. 1(1)(b), 30(4) (with reg. 1(2))