[2025] UKUT 00185 (TCC)

Factor (b) of the factors listed in DEPP 6.5B.3 is the degree of co-operation during the investigation of the breach. The Applicants co-operated fully with the Authority and with the PRA; both Applicants attended interviews in June 2019 and December 2020. Mr Arden also led the Teach-In provided to the PRA on 3 July 2019, to assist them with their investigation, see §260. Mr Jaffey submitted that all of those points were relevant to co-operation.

The Authority’s position in relation to Mr Donaldson was that he “had a legal obligation to attend his interview with the Authority and to give answers” and so the interviews were not relevant to mitigation. In relation to Mr Arden, the Authority took the same position, and added that:

“The teach-in presentation was given to the PRA only, and the admissions contained in it concerned historical governance, controls and the process for preparing COREP reports. The presentation and its contents were therefore not directly relevant to the Authority’s investigation and so the Authority does not consider that Mr Arden’s co-operation should be considered a mitigating factor.”

We disagree. The co-operation referred to in factor (b) is that shown by individuals “during the investigation” carried out by the Authority. Interviews are a significant part of the approach taken to investigations, and while it is true that in a compelled interview, a person must answer the questions asked, there can nevertheless be varying degrees of co-operation and there is no basis for excluding interviews from factor (b) as a matter of principle. In relation to the Applicants, as Mr Jaffey said, “there has never been any attempt by either individual to present anything other than a full and honest account of the events to the Authority”.

The Authority also dismissed as irrelevant Mr Arden’s co-operation with the PRA, but factor (b) expressly includes co-operation with “any other regulatory authority allowed to share information with the FCA”, and that description plainly includes the PRA.