Surveillance and intelligence gathering powers of the FCA
Produced in partnership with Carolina Bracken of 5 Paper Buildings
Surveillance and intelligence gathering powers of the FCA

The following Corporate Crime practice note Produced in partnership with Carolina Bracken of 5 Paper Buildings provides comprehensive and up to date legal information covering:

  • Surveillance and intelligence gathering powers of the FCA
  • FCA powers of surveillance
  • Acquisition of communications data
  • FCA surveillance and the use of a CHIS
  • FCA request for encryption key
  • Authorisation required before FCA use of surveillance

The Investigatory Powers Act 2016 (IPA 2016) received Royal Assent on 29 November 2016 and overhauled the legal framework governing the use of covert surveillance by public bodies, a framework which was largely, but not exclusively, set out by the Regulation of Investigatory Powers Act 2000 (RIPA 2000). See Practice Note: The Investigatory Powers Act 2016—an introductory guide.

FCA powers of surveillance

The Financial Conduct Authority (FCA) is authorised to carry out surveillance to collect information in the prevention and detection of crime. These powers are:

  1. to acquire data in respect of communications (see Practice Note: Acquisition and disclosure of communications data under the Investigatory Powers Act 2016)

  2. to carry out covert surveillance which may be recorded (see Practice Note: Covert intelligence sources)

  3. to use informants (covert intelligence sources or covert human intelligence source (CHIS)), see Practice Note: Covert intelligence sources) and

  4. to require encryption keys or passwords to access electronic data (see Practice Note: Investigation of encryption protected electronic data under RIPA 2000)

The FCA is not entitled to obtain a warrant to intercept communications in the course of transmission. This means that it is not allowed to listen to and record the content of telephone calls. This was the position under RIPA 2000 and remains the case under IPA 2016.

Acquisition of communications data

RIPA 2000 set out a framework for the requisition, provision and handling of communications data.

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