The FCA's approach to investigation-stage publicity has itself been under the spotlight in recent years.
The FCA had originally proposed widening the scope for naming (and shaming) investigation targets by bringing in a "public interest" test. Following consultation and significant criticism from market participants, it has ultimately moved away from that proposal, and retained the established "exceptional circumstances" threshold.
Recent developments demonstrate how those dynamics have played out in practice.
The "exceptional circumstances" test remains. What has evolved, as examined below, is the articulation of the criteria and process by which the FCA approaches naming decisions – and the judicial framework within which those decisions may later be reviewed.
From CP24/2 to PS25/5 - The formal threshold retained
Consultation Paper CP24/2 proposed replacing "exceptional circumstances" with a broader "public interest" test for naming firms under investigation.
The suggestion that the FCA could take a more liberal approach to naming firms under investigation prompted significant opposition. Concerns were expressed as to the risk of irreversible reputational harm and the destabilising impact on firms. The danger was that naming in practical terms might be a punishment without completion of a fair investigation/enforcement process, resulting in something of a fait accompli.
In PS25/5 (3 June 2025), the FCA confirmed that it would retain the “exceptional circumstances” threshold for regulated and listed firms. As it stated, it had “chosen not to proceed with the proposal to apply a public interest test when considering whether to announce investigations into authorised persons or listed companies” in light of consultation feedback.
Alongside this, the FCA introduced changes to the Enforcement Guide setting out how it intended to approach decisions to name firms under investigation.
