Uncertainty is the new normal. UK criminal and regulatory enforcement authorities, like the rest of us, are adjusting to unprecedented levels of business disruption. This short alert provides signposts to the guidance given by key authorities so far about immediate steps they are taking in response to the outbreak and the difficulties it causes. We will update this information with further key developments as they happen.

We recognise that the current situation will bring many difficult and highly specific scenarios, many of which will not be covered by the guidance issued by authorities. We are ready to help businesses and individual decision-makers to work through these.

Financial Conduct Authority

The Financial Conduct Authority (FCA) has issued and is maintaining separate information pages for firms and consumers. See our separate publication on the guidance for firms (as at 17 March) here.

On 19 March, the FCA added a specific information page for general insurance firms, setting out its expectations about how firms should treat consumers in relation to issues connected with the outbreak.

On 20 March, the FCA released a separate page aimed at helping firms to identify which of their staff are "key workers" for the purposes of the restrictions imposed by the UK government on educational provision. The page does not contain prescriptive or binding guidance, but states that the FCA expects that numbers of "key workers" will be limited. It sets out examples of the types of roles it considers essential for the functioning of the financial system. The list set out by the FCA as types of roles which may fall within the definition includes individuals essential to the running of the firm, including those covered by the Senior Managers Regime, together with individuals essential to the provision of a range of customer facing and support functions. The page also recommends that CEOs of financial services firms should ensure that an appropriate system is put in place to identify "key workers" and suggests that "key workers" should be issued with a letter (signed by an individual of appropriate seniority) confirming their status as such.

On 23 March, the FCA added new sections to its previously published information pages for firms dealing with how firms should treat consumers in persistent debt, together with other practical measures aimed at facilitating access to cash for consumers.

Apart from the limited references contained within its "key worker" guidance, neither the FCA nor the Prudential Regulation Authority have yet issued specific guidance in relation to the operation of the Senior Managers and Certification Regime during this time. Issues for firms and individuals within them will include how Senior Managers may demonstrate that they have taken "reasonable steps" in relation to decisions taken in connection with the current situation and how best to seek to ensure that certification and Conduct Rules training processes continue if possible.

The FCA has not as yet followed other European markets regulators (for example those in Italy and Spain) in imposing restrictions on short selling.

On 21 March, the FCA wrote to all companies it is aware are due to publish preliminary financial statements imminently to request that they delay doing so for at least two weeks.

Financial Reporting Council

The Financial Reporting Council (FRC) has issued guidance in relation to audit issues (16 March), separate guidance for auditors (16 March) and  a further publication containing practical points in relation to how to hold annual general meetings (18 March). It has also drawn attention to Companies House guidance on extensions for filing deadlines (19 March).

On 23 March, the FRC confirmed its support for the FCA's request for companies due to publish preliminary financial statements to impose a moratorium of at least two weeks (see above).

HM Revenue & Customs

HM Revenue & Customs (HMRC) has not yet issued any specific guidance relating to enforcement or supervision.

Information Commissioner's Office

On 16 March, the Information Commissioner's Office (ICO) issued a question and answer document giving general data protection advice for data controllers. See our separate publication (17 March) here.

On 18 March, the ICO published a short document aimed at data subjects about particular commonly occurring data-related issues including those relating to the provision of health information and the likelihood of delays to responses to data subject access requests.


National Crime Agency

Unlike its US counterpart, FINCEN (see our 17 March publication here), the National Crime Agency (NCA) has not yet published any specific guidance, whether in relation to the operation of anti-money laundering and counter-terrorist financing suspicious activity reporting (SAR) frameworks or any other issues.

In particular, neither the NCA nor any other authority has yet issued any guidance on whether it is experiencing particular difficulties in processing SARs submitted to it within statutory deadlines or on the extent to which the current situation may amount to a "reasonable excuse" for not filing an SAR.

For the time being, these processes appear to be running as normal. There has not been any suggestion of amendments to the duration of the "notice period" following the filing of SARs (seven working days). There has similarly not yet been any indication of whether practical difficulties encountered by the NCA in progressing investigations may form the basis of successful applications for extensions to the moratorium period (i.e. the period following confirmation from the NCA that consent to taking particular actions is denied) or of whether the NCA or the courts will show forbearance in respect of delays by parties complying with orders such as unexplained wealth orders in complying with stringent time limits.

Office of Financial Sanctions Implementation

The Office of Financial Sanctions Implementation (OFSI) has not yet issued any specific guidance. It has indicated that it will continue to operate as close to normal during the outbreak, although it has indicated that timescales will be longer (but that it will prioritise urgent and humanitarian cases).

The US Office of Foreign Assets Control (OFAC) has issued guidance on humanitarian aid and medical sales to Iran in response to COVID-19. See our separate publication (18 March) here.

Prudential Regulation Authority

The Prudential Regulation Authority (PRA) has not yet issued any specific guidance relating to enforcement or supervision.

Serious Fraud Office

The Serious Fraud Office (SFO) has not yet published any specific guidance on aspects of how it proposes to conduct investigations or prosecutions during the outbreak. It has indicated that it is currently not able to deal with paper correspondence in a timely fashion and has invited correspondence by email (although it has issued a reminder that email is not entirely secure).

At least one high profile ongoing trial has been adjourned and it looks likely that there will be significant delays to others currently scheduled as the Lord Chief Justice has now ordered that no new jury trials may be commenced until further notice.

As with the NCA, the SFO has not yet indicated the circumstances in which subjects of orders requiring information to be provided or documents produced may claim that they have a "reasonable excuse" for not doing so in the current situation.

Other developments

On 20 March, the UK Government issued a list of "key workers" for the purposes of continuing school provision. Those listed should not be prevented from working due to childcare issues, although clearly operational effectiveness may still be reduced by other factors during the outbreak. The list includes police and NCA staff and individuals "essential to the running of the justice system". Staff from other agencies named above are not explicitly included, although they may be deemed to fall within some of the widely drawn categories in some circumstances. See above for details of specific guidance issued by the FCA in relation to the identification of "key workers" within the financial services sector, and steps it considers financial services firms should be taking in relation to this.

Forthcoming developments

The Coronavirus Bill was introduced in Parliament on 20 March, and is expected to progress quickly. It contains a range of practical measures aimed at countering the effects of the outbreak. It may be amended or supplemented. We will provide further details and updates as it progresses into law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.