Instead, in such 'twin track' investigations, the FCA more commonly interviews defendants under caution. This is quite different.
At the start of the interview, the FCA should deliver a standard form caution (of the same kind used by the Police in other cases) that makes it clear the person being interviewed does not have to say anything, but it may harm their defence if they do not mention when questioned something on which they later rely in Court.
The FCA uses a similar 'market abuse' caution in investigations which only involve civil/regulatory market abuse.
Here, the interviewee is not compelled to answer the FCA's questions, and may remain silent. However, the caution is material. Should the FCA go on to prosecute the interviewee (particularly in criminal cases), having failed to mention a fact which the interviewee could reasonably be expected to have mentioned risks adverse inferences being drawn, potentially making it more likely that their defence would fail. The right to remain silent under English law is accordingly not absolute.
For a person asked to attend such an interview, there is often an important tactical question over how to respond.
DB v Consob
On 2 May 2012, the Italian National Commission for Companies and the Stock Exchange (Consob) imposed on an individual (known for the purposes of the case as 'DB'), a penalty for insider dealing offences under the predecessor of EU MAR (Market Abuse Regulation).
Consob also imposed a Euro 50,000 penalty on DB for failing to cooperate with its investigation. He had declined to answer questions during an investigatory hearing that could have led to an administrative sanction or a criminal prosecution (in a similar way to a 'twin track' case in the UK). The penalties ultimately imposed were administrative, not criminal. Italian law however enabled him to be penalised for failing to comply with Consob's requests in a timely manner or delaying the performance of its functions.
DB appealed the penalty for failing to cooperate as far as the Italian Constitutional Court, arguing (in summary) that he had been entitled not to answer questions at the hearing, he had a right to silence and not to incriminate himself, the answers he had given could potentially have led to a criminal (rather than administrative) sanction, the administrative sanctions were of a criminal nature anyway, and accordingly his fine for failing to cooperate should be overturned.
The Italian Court asked the ECJ to rule on a person's right to silence in this situation, and in particular on whether EU MAR requires a Member State to impose penalties on individuals for refusing to answer questions in this context.
