(1) An investigator may require a person to whom subsection (1A) applies—
(a)to attend before the investigator at a specified time and place and answer questions; or
(b)otherwise to provide such information as the investigator may require.
(1A)This subsection applies to the following persons—
(a)
the person who is the subject of the investigation (“the person under investigation”);
(b)any person connected with the person under investigation;
(c)where the person under investigation is an FCA investment firm, a person who provides, or has provided, a service to the firm or to a relevant parent undertaking of the firm;
(d)where the person under investigation is a relevant parent undertaking of an FCA investment firm, a person who provides, or has provided, a service to the parent undertaking or to the firm.
(2)An investigator may also require any person to produce at a specified time and place any specified documents or documents of a specified description.
(3)A requirement under subsection (1) or (2) may be imposed only so far as the investigator concerned reasonably considers the question, provision of information or production of the document to be relevant to the purposes of the investigation.
(3A)Where the investigation relates to a recognised investment exchange, an investigator has the additional powers conferred by sections 172 and 173 (and for this purpose references in those sections to an investigator are to be read accordingly).
(4) For the purposes of this section and section 172, a person is connected with the person under investigation (“A”) if he is or has at any relevant time been—
(a)a member of A’s group;
(b)a controller of A;
(c)a partnership of which A is a member; or
(d)in relation to A, a person mentioned in Part I or II of Schedule 15.
(5) “Investigator” means a person conducting an investigation under section 167.
(6) “Specified” means specified in a notice in writing.
(7)The reference in subsection (3A) to a recognised investment exchange does not include a reference to an overseas investment exchange (as defined by section 313(1)).
Cases considering section 171 (6)
[2010] EWCA Civ 123 · 24 February 2010Interprets
The court treated section 171 as conferring the relevant document-production and information powers on investigators through section 172(1), subject to the statutory relevance requirement. (see paras [29]-[30], [50]-[53])
The court treated section 171(1) as subject to the relevance threshold incorporated through section 172(1), while distinguishing it from the necessity-or-expediency test in section 172(3). (see paras [29]-[30], [50]-[53])
The court held that section 171(2) permits a requirement to produce specified classes of documents, not only individually identified documents. The recipient must be able to identify what must be produced. (see paras [29]-[30], [55]-[59])
The court applied section 171(3) by asking whether the investigators reasonably considered production of the documents relevant to the investigation. That condition was satisfied, so the production requirement was lawful. (see paras [50]-[54])
Cited only.
[2009] EWHC 2242 (Admin) · 25 August 2009Interprets
Section 171(1) permits an investigator to require a person to attend or provide information. The court distinguished this information power from the specific document-production power in section 171(2) (see paras [12]-[15]).
Section 171(2) permits an investigator to require any person, including an accountant or bank, to produce specified documents or documents of a specified description. The request must be sufficiently identified and connected with the purposes of the investigation (see paras [12]-[15]; [42]-[47]).
Section 171(3) requires the investigator reasonably to consider the requested information or documents relevant to the purposes of the investigation. The court held that ultimate irrelevance does not invalidate a requirement if the investigator’s view was reasonable when the requirement was imposed (see paras [13]; [42]-[47]).
[2009] EWCA Crim 1639 · 29 July 2009
The court confirmed that the Financial Services Authority’s powers to require and gather information were not confined to the person under investigation. Its treatment of Mr Fury therefore did not make the respondent’s prosecution abusive (see para [62]).
What each judgment says about section 171 is in the case-law panel in the full Act.
334.This section establishes the powers of investigators appointed under the general investigations power to require people to attend before them and answer questions, and to provide information or documents. The investigators may only impose these requirements where they reasonably consider that the questions, information or documents in question are relevant to the investigation. And they may only impose them on the person under investigation, or any other “connected person” as defined in subsection (4). These limitations reflect the broad grounds on which the general investigatory power is exercisable.