The Financial Conduct Authority’s (FCA's) updated Enforcement Guide: Exceptional and Additional Circumstances justifying publication of an FCA investigation

On 3 June 2025, the FCA published its updated Enforcement Guide which sets out its policy for publication of its investigations. The updated Enforcement Guide comes into force with effect from 3 June 2025.

The FCA’s publication policy, which is the subject of this article, will apply to all FCA investigations started on or after 3 June 2025 by way of statutory appointment of investigators.

Publication of the policy comes at the end of a rocky road:

• In November 2024, the House of Lords Financial Services Regulation Committee criticised the “naming and shaming” of investigation subjects by announcement of investigations (see the Update in our previous article of 22 November 2024, here);
• In February 2025, the Chairman of the House of Lords Financial Services Regulation Committee said this: “The FCA told us that the average duration of investigations is around three to four years and in 56% of cases no further action was taken. If it presses ahead with its proposals on past performance it could mean that half of the firms it investigations, and the people involved in them, will have their reputations unnecessarily and unfairly damaged. This is not acceptable.”¹ 
• In March 2025, the FCA abandoned its controversial public interest test to assess whether an investigation should be announced (see our article of 27 March 2025, here).

In the updated Enforcement Guide, the FCA maintains its “exceptional circumstances” test for publication (ENFG 4.1.4). The FCA will make a public announcement that it is investigating a matter if it considers that such an announcement is desirable to:

• a. maintain public confidence in the UK financial system or the market;
• b. protect consumers or investors;
• c. prevent widespread malpractice;
• d. help the investigation itself, for example by bringing forward witnesses; or
• e. maintain the smooth operation of the market.

In deciding whether to make an announcement, the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation.

Such exceptional circumstances may arise where the matters under investigation have become the subject of public concern, speculation or rumour, in which case it may be desirable for the FCA to make public the fact of its investigation to allay concern, or contain the speculation or rumour.

However, the FCA has identified a further three instances where it may announce an investigation:

• An investigation into suspected unauthorised activity or a suspected criminal offence in relation to an unregulated activity, if the FCA considers such an announcement is desirable for the purpose of warning or alerting consumers or investors, or to help the investigation itself e.g. by bringing forward witnesses. In deciding whether to make an announcement, the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation.
• Where the fact of an investigation has already been made public by the person under investigation, an affiliated company or a regulatory body, government or public body. The FCA’s announcement may also confirm the subject matter of the investigation to the extent that it has already been made public in that manner.
• An anonymised announcement where it is desirable for the purpose of educating persons generally as to the types of conduct that the FCA is investigating or to encourage compliance with the FCA rules or other requirements.

FCA Policy Statement PS25/5 (“Our Enforcement Guide and greater transparency of our enforcement investigations”: June 2025 at paragraph 1.24² ) identifies the outcomes the FCA is seeking by its revised approach to publication:

• Supporting public confidence, reassuring consumers and market participants that the FCA is taking action which will, in turn, build trust in the system, supporting the economy and wider financial services industry, and support the FCA’s accountability to Parliament.
• In the case of unauthorised activity by unregulated firms, where the FCA’s tools to prevent and mitigate harm prior to an investigation are significantly reduced, earlier announcements may reduce consumer harm, and encourage witnesses to come forward, helping the pace and effectiveness of investigations.
• Educational benefit for industry: helping firms identify areas of concern, driving behavioural changes and encouraging firms to make improvements more swiftly.
• Educational benefit for consumers: supporting better-informed decisions and helping to reduce or avoid harm.

The FCA has expressly acknowledged the strength of opposition to its now discarded proposal of using a public interest test to resolve upon whether to “name and shame” (see paragraph 2.43 of PS25/5). It hopes that maintaining the existing exceptional circumstances test as the principal test and making the three changes referred to above will help the FCA achieve the majority of its aims.

The FCA has provided some pointers as to how it might engage with cases falling in the three categories.

In relation to unauthorised activity:

• The FCA will not generally announce when it has opened an investigation into a named individual, given specific legal considerations on sharing information about individuals. It anticipates rare circumstances justifying the naming of an individual, for example where an individual holds themselves out as a firm, that being a case which often involves considerable consumer harm.
• Where applicable, the FCA will consider the potential prejudice that may be caused to any person who is, or is likely to be, the subject of investigation.

In relation to reactive announcements:

• Any announcement is likely to be a confirmatory statement on the FCA’s website or by its press office or in response to a parliamentary request for information.
• Any information shared will not “typically” go beyond what has already been put in the public domain, limited to confirming the name of the subject of the investigation and possibly including the subject matter of the investigation.

In relation to anonymised announcements:

The FCA says it is exploring ways of sharing information on a general basis, addressing themes and trends in its enforcement work. The FCA may also make anonymised announcements about a particular investigation. Specifically, the FCA will:

• Take all reasonable steps to ensure that the investigation subject cannot be identified. 
• Consider the risk that an announcement, even if fully anonymised, may disproportionately negatively affect firms of the relevant type or in the relevant sector on a case-by-case basis.

By way of overarching policy, the FCA says that it will not generally announce when it has opened an investigation into a named individual. Presumably, by that the FCA means that it will not name the individual.

Decision makers, timings and process in relation to all investigations: the FCA says it will do the following:

• Consider how its publicity policy applies, both on opening an investigation and at regular review points thereafter.
• Where applicable (although the FCA does not indicate the relevant conditions of applicability), consider the potential prejudice that may be caused to any person who is, or is likely to be, the subject of investigation.
• Time its announcement dependant on the investigation and the relevant provisions it is relying on. For example, it might reactively confirm an investigation which has become public knowledge many months after that investigation started or it might share information to warn consumers about suspected unauthorised activities quite early on in an investigation, provided the investigation was not covert.
• Vary the form in which it shares information, for example by a brief reactive confirmation on its website or on a more general basis or on the FCA’s Register, Warning List and Firm Checker facility.

In conclusion:

The FCA’s description of the exceptional circumstances test as its “principal” test, followed by identification of three additional circumstances where it may announce an investigation, might be taken to suggest that those latter circumstances are not, in fact, exceptional. 

However, the FCA retains a discretion as to whether to announce an investigation in any circumstances, and it remains to be seen whether announcements in those three circumstances become “the norm”. That, in itself, may be difficult to judge in circumstances where there is no visibility as to the types of case where investigations go unannounced and no further action is taken, although the FCA says it will report annually on the number of cases where it shares information about an investigation and then takes no further action.

PS25/5 charts vividly the course of engagement to date between an FCA committed to greater transparency in its enforcement activity, and stakeholders concerned by at least the FCA’s proposal to publicise its investigations, and, specifically, the operation by the FCA of a public interest test in that context.

For the time being, it seems that the FCA has retreated. But the FCA’s promise in PS25/5 to track the reasons for whistle-blower disclosures and witnesses coming forward, and public and industry confidence in its enforcement work, suggests that the FCA will continue to keep the thorny issue of “naming and shaming” under close review. 

It remains to be seen whether the FCA has found an acceptable balance between consumer protection and managing potential risks to firms, individuals, and market stability.

¹ Lords report concludes that naming and shaming is not the way to regulate - UK Parliament; see also Naming and shaming: how not to regulate

² PS25/5: Our Enforcement Guide and greater transparency of our enforcement investigations