In the past, FCA investigations were generally confidential and it would not normally make any information public, at least until after representations had been made to the Regulatory Decisions Committee and a decision notice issued. However, on 15 October 2013, the FCA issued policy statement PS13/9 (the policy) in relation to its new power under the Financial Services and Markets Act 2000 to publicise information about a proposed enforcement action and that power took effect immediately for warning notices issued on or after that date (see Briefing "FCA enforcement: publishing information about warning notices").

The policy confirmed that the circumstances of each case would be considered and those involved would be consulted and their representations regarding unfairness or any other bar to publication would be taken into account. Any statement published would not include details of the sanction and, while a firm would usually be named, statements relating to individuals would normally be anonymised.

The policy also reiterated that the FCA's objective in publishing statements was to provide earlier information about enforcement action to enable the financial services industry and consumers to understand the types of behaviour that are considered unacceptable by the FCA, which would, in turn, also help to maximise the deterrent effect of enforcement action.

The first two statements were published in February 2014 (relating to warning notices issued in November 2013). Since then, a number of further statements have appeared without press release or fanfare on the FCA's website. None of the first nine statements names either the individuals or their employer firms. The first seven statements relate to the conduct of individuals in respect of interest rate benchmark submissions; two of the individuals are described as managers.

The FCA considers that all seven have been knowingly concerned in breaches by their firms of Principle 5 of the FCA's Principles for Businesses (requiring firms to observe proper standards of market conduct). The two managers are also thought to have been knowingly concerned in breaches of Principle 3 (requiring firms to take reasonable care to organise and control their affairs responsibly and effectively, with adequate risk management systems).

The behaviour under investigation by the FCA includes:

The charges against the managers also include:

The fact that the first statements related to warning notices issued some two months previously may indicate that the individuals made representations, possibly regarding the fairness of publication or seeking to ensure that their anonymity is preserved.

Although the fact that none of the individuals has been named serves as a confirmation that statements can be anonymised where individuals are not easily identifiable, it is not possible to draw any useful conclusions regarding the circumstances in which publication may be prevented since the FCA will not make public any details of the representations made or the reasons for publication.

However, it is possible to assess whether publication of these statements goes any way towards achieving the FCA's stated objective; namely, a better understanding of unacceptable conduct and enhanced deterrence.

By way of example, the first seven statements relate to interest rate submissions, which have already been the subject of several detailed final notices against firms, and the conduct involves those individuals having been knowingly concerned in the misconduct of their firms. Accordingly, the statements cannot be said to add significantly to the sum of our understanding of what constitutes unacceptable conduct in making submissions.

The brevity of the statements and lack of underlying facts also mean that we cannot deduce much about the circumstances in which a charge of "knowing concern" may be made.

Although we are being told about these cases at an earlier stage, the very fact that it is so early in the process undermines the utility of the information. Many questions remain unanswered. How many of these statements will turn into decision notices or final notices, or be upheld by the tribunal and on what grounds? What representations will be made by the individuals and to what extent will these be successful? What sanctions will be imposed and how will these be determined? With so much uncertainty, it is difficult to see how these statements can serve either as a useful messaging tool or to strengthen credible deterrence.

Further, since none of the individuals or firms is named, we cannot assess whether the FCA's enforcement strategy is to target a number of employees at one institution or a selection of individuals from across a number of firms. If it is the latter, the reasons for these individuals having been singled out are not known.

What is clear, however, is that the publication of these statements serves to remind individuals, including senior management, that the FCA will seek to hold individuals to account in the event of firm failures and that its policy of credible deterrence involves making public examples of those found to have fallen below the standards required.

As the unnamed individuals could no doubt testify, the regulatory spotlight is not a comfortable place to be and the fact that their identity remains unknown at this stage is unlikely to offer significant comfort to the individuals concerned. In that sense, the FCA could be said to be hitting the target but, in terms of achieving its policy of credible deterrence by improving the understanding of what constitutes misconduct, the FCA may be falling wide of the mark.