Pursuant to the Decision of the Upper Tribunal, which was published on 16
August 2019, this Decision Notice has been superseded by a Final Notice dated
16 August 2019.

DECISION NOTICE

1.
ACTION

1.1.
For the reasons given in this Decision Notice, the Authority has decided to:

(1)
publish a statement of Andrew Tinney’s misconduct (a ‘public censure’)

pursuant to section 66 of the Act; and

(2)
make an order, pursuant to section 56 of the Act, prohibiting Mr Tinney

from performing any senior management function and any significant

influence function in relation to any regulated activity carried on by an

authorised person, exempt person or exempt professional firm.

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2.
SUMMARY OF REASONS

2.1.
Between 20 May 2010 and 17 December 2012, Mr Tinney was the Global Chief

Operating Officer of Barclays Wealth and Investment Management (‘Wealth’), a

division of Barclays Bank PLC (the ‘Firm’). In that role, Mr Tinney was responsible

for overseeing Wealth’s global technology, operations and infrastructure activities

and for Wealth’s Compliance function, and had joint responsibility for Wealth’s

Legal function.

2.2.
In his role as Chief Operating Officer, Mr Tinney was approved by the Authority to

carry out the CF29 (Significant Management) controlled function and was required

to comply with the Statements of Principle. Of these, Statement of Principle 1

required that he act with integrity in carrying out his controlled function. For the

reasons set out in paragraph 2.5 below, the Authority considers that, during the

period 26 September 2012 to 17 December 2012 (the ‘Relevant Period’), Mr

Tinney failed to do so.

2.3.
In early 2012 Mr Tinney was appointed Chairman of a steering committee

(‘SteerCo’) that had been appointed to oversee a remediation program that the

Firm was undertaking to correct certain regulatory deficiencies identified by the

SEC during an examination of Wealth’s US branch, Barclays Wealth Americas

(‘BWA’).
The remediation program included a “Culture Audit” workstream which

Mr Tinney initiated and personally communicated to the SEC as part of a

programme designed to reassure the SEC that the Firm took the deficiencies

seriously and would seek to identify their root cause(s).
As a part of that

workstream, a third party consultancy (‘the Consultancy’) was engaged to

examine how the ‘tone at the top’ flowed through BWA. The Consultancy set out

its findings in a 29 page document entitled ‘Barclays Wealth America – Cultural

Assessment’ (the ‘Report’) which Mr Tinney received, in hard copy, on 30 March

2012. The words ‘Barclays Wealth America – Culture Audit’ appear at the top of

each page of the Report.

2.4.
The Report contains a contents page, a description of the methodology and data

sources used by the Consultancy, a summary and recommendations. It does not

address how the ‘tone at the top’ flowed through BWA. Instead, it includes a

number of statements and quotes derived from interviews of certain BWA

employees which are highly critical of some members of BWA’s senior

3

management. It expresses an opinion that BWA had pursued a course of revenue

at all costs and had a culture that was high risk and actively hostile to

compliance. Its main recommendation is that the Firm should replace or consider

replacing some members of BWA’s senior management.

2.5.
Prior to the Relevant Period, although the Consultancy’s findings were orally

shared with a small number of senior individuals within Wealth and two senior

individuals within BWA, and although some individuals in Wealth either knew,

suspected or assumed the Report existed, Mr Tinney was the only individual at

the Firm who saw the Report. After discussing its contents with his manager, the

Chief Executive of Wealth, Mr Tinney took steps which aimed to ensure that the

Report would not be seen by or available to those senior individuals referred to

above or anyone else at the Firm, whilst also putting in place a plan (which

included briefings and the Workshop) to address the criticisms contained in the

Report. He ensured that the Report would not be seen by or available to others

by not sharing it with anyone, not entering it into the Firm’s records or IT

systems, and instructing the Consultancy that they did not need to circulate a

copy. Having done so, during the Relevant Period, in breach of Statement of

Principle 1, he recklessly made misleading statements and omissions to certain of

his colleagues at the Firm as to the Report’s nature and/or existence, which he

should have been aware would make it less likely that he or the Consultancy

would be asked for a copy of it. Mr Tinney made those statements and omissions:

(1)
after an anonymous email to the Firm’s Chairman (the ‘Anonymous Email’)

alleged that a ‘Wealth cultural audit report’ had been suppressed. In drafts

of a note regarding the allegation (the ‘September Note’), to which he

contributed and which, as he was aware, was likely to be provided to the

Firm’s Chairman and new Chief Executive, as well as to those conducting

the Salz Review (see paragraph 2.8 below), Mr Tinney did not mention the

Report, described the Consultancy’s work so as to imply that there was no

written output and, at one stage of the drafting, added the words ‘There

has never been a “Wealth Cultural Audit Report” produced at any time’. In

making these misleading statements and omissions, Mr Tinney closed his

mind to the obvious possibility that the Anonymous Email was referring to

the Report, and also to the legitimate interest that the ultimate recipients

of the September Note had in being made aware of the existence of the

Report, of which they could then have requested a copy, had they so

wished; and

(2)
after the Firm received a request from the Federal Reserve Bank of New

York (‘New York Fed’) for a copy of the BWA ‘cultural audit’.
In emails to

colleagues regarding this request, Mr Tinney initially did not mention the

Report and then made statements which suggested the Report did not

exist. Later, when discussing with colleagues what document(s) should be

given to the New York Fed, Mr Tinney described the Report as ‘interview

notes’, ‘rough notes’, ‘interview material’ or similar, which did not fairly

and accurately reflect its nature and contents. In making these misleading

statements and omissions, Mr Tinney closed his mind to the obvious

possibility that the Report was relevant to and likely, at least in part, to

have satisfied the New York Fed’s request.

2.6.
In December 2012 the Firm received a copy of the Report from the Consultancy

and,
shortly afterwards,
suspended Mr Tinney’s employment. Mr Tinney

subsequently resigned from the Firm.

2.7.
Mr Tinney’s misconduct as described in this Notice is serious, particularly in the

light of his seniority at the Firm, his substantial industry experience and the

obvious significance of the concerns giving rise to, and set out in, the Report. His

actions may have hindered attempts by the Firm’s Board to understand the

reasons for BWA’s regulatory deficiencies. He also exposed the Firm to the risk

that its efforts to address failings in its compliance with its legal and regulatory

obligations could be delayed or frustrated as his actions could have delayed or

(1)
the Firm’s Board’s ability to ascertain whether the concerns raised in the

Anonymous Email were well-founded;

(2)
the Firm’s Board’s ability to establish whether the Firm was complying with

its obligations in respect of dealing with allegations from whistleblowers;

and

(3)
the Firm’s ability to comply with the New York Fed’s request
in

circumstances where, as Mr Tinney was aware, the New York Fed was

5

specifically interested in, and made several requests during 2012 for,

information about the Culture Audit workstream.

2.8.
The Authority also considers Mr Tinney’s misconduct to be serious because it

occurred during the Salz Review, an independent review of business practices

launched by the board of the Firm in the immediate aftermath of the LIBOR

Settlements and which was intended to examine the Firm’s values, principles and

standards of operation - the historical culture - and make recommendations for

change.
In that context, Mr Tinney should have understood the connection

between the Firm’s culture and regulatory compliance, and senior management’s

ability and willingness to positively influence appropriate behaviour throughout

the organisation. Indeed, the fact that he devised the Culture Audit workstream

because he wanted to assess whether the culture in BWA contributed to BWA’s

regulatory deficiencies demonstrates that Mr Tinney did
understand that

connection. Mr Tinney should therefore have understood that his conduct was not

consistent with setting an appropriate tone from the top.

2.9.
Mr Tinney’s misconduct is aggravated by the subsequent account of certain events

which he gave, through his solicitors, in correspondence with the Institute of

Chartered Accountants of England and Wales (‘ICAEW’), of which Mr Tinney is a

member, and which he gave in compelled interviews with the Authority on 29 July

2014 and 23 January 2015. In the Authority’s view, Mr Tinney’s account of these

events was misleading.

2.10.
The Authority therefore proposes to publish a statement of Mr Tinney’s

misconduct pursuant to section 66 of the Act for breaching Statement of Principle

1 and to make a prohibition order pursuant to section 56 of the Act in the terms

set out at paragraph 1.1(2)
above.
This action supports the Authority’s

regulatory objectives of protecting and enhancing the integrity of the UK financial

system and securing an appropriate degree of protection for consumers, and is

consistent with the importance placed by the Authority on the accountability of

senior management.

3.
DEFINITIONS

3.1.
The definitions below are used in this Notice.

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‘the Act’ means the Financial Services and Markets Act 2000.

‘Anonymous Email’ means the anonymous email described at paragraph 4.10 of

this Notice.

‘APER’ means the Statements of Principle and Code of Practice for Approved

Persons section of the Handbook.

‘the Authority’ means the body corporate previously known as the Financial

Services Authority and renamed on 1 April 2013 as the Financial Conduct

Authority.

‘BWA’ means Barclays Wealth Americas, a US branch of Wealth.

‘the Consultancy’ means the third party consultancy engaged by Mr Tinney to

examine how the ‘tone at the top’ flowed through BWA.

‘Culture Audit’ means the workstream described in paragraph 4.2 of this Notice.

‘DEPP’ means the Decision Procedure and Penalties Manual section of the

Handbook.

‘EG’ means the Enforcement Guide part of the Handbook.

‘EURIBOR’ means the Euro Interbank Offered Rate.

‘Firm’ means Barclays Bank Plc.

‘FIT’ means the Fit and Proper test for Approved Persons section of the Handbook.

‘the Handbook’ means the Authority’s Handbook of rules and guidance.

‘ICAEW’ means the Institute of Chartered Accountants of England and Wales.

‘IT’ means information technology.

‘LIBOR’ means the London Interbank Offered Rate.

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‘LIBOR Settlements’ means the Firm’s agreement to pay financial penalties

totalling £290 million for misconduct relating to LIBOR and EURIBOR, described in

paragraph 4.7 of this Notice.

‘New York Fed’ means the Federal Reserve Bank of New York.

‘Relevant Period’ means 26 September 2012 to 17 December 2012.

‘Report’ means the hard copy document entitled ‘Barclays Wealth America –

Cultural Assessment’ issued by the Consultancy pursuant to the Culture Audit

workstream and received by Mr Tinney on 30 March 2012.

‘Salz Review’ means the independent review of the Firm’s business practices

described at paragraphs 4.8 and 4.9 of this Notice.

‘SEC’ means the United States Securities and Exchange Commission.

‘September Note’ means the written response, described at paragraph 4.11 of this

Notice, to the allegations in the Anonymous Email.

‘SteerCo’ means the steering committee appointed by the Firm to oversee the

remediation activity, described at paragraph 4.1 of this Notice.

‘Statements of Principle’ means the Statements of Principle in force during the

Relevant Period, which were issued by the Authority under section 64 of the Act

and set out in APER.

‘the Tribunal’ means the Upper Tribunal (Tax and Chancery Chamber).

‘Wealth’ means the Wealth and Investment Management division of the Firm.

‘the Workshop’ means the workshop held on 29 May 2012 described at paragraph

4.6 of this Notice.

4.
FACTS AND MATTERS

Background - Events preceding the Relevant Period

4.1.
In early 2012 the Firm was notified by the SEC that it had identified a number of

deficiencies in the course of a regulatory examination of the US branch of Wealth,

BWA. In response, the Firm embarked on a remediation program and appointed

the SteerCo, of which Mr Tinney was Chairman, to oversee the rectification of

those deficiencies.
Mr Tinney assured the SEC that the Firm would spend

‘whatever it took’ and he ‘would personally make sure that their deficiency letter

was addressed fully and comprehensively’.

4.2.
One of the remediation activities was a “Culture Audit” workstream. Mr Tinney

informed the Authority that the purpose of this workstream was to assess whether

the culture in BWA contributed to the deficiencies identified by the SEC by

examining, among other things, how the ‘tone at the top’ flowed through the

organisation and how issues were escalated from the ‘bottom up’. The Culture

Audit workstream was Mr Tinney’s initiative and he personally communicated it to

the SEC as a way of reassuring them that the Firm took the deficiencies seriously

and would seek to identify their root cause(s). A similar reassurance (of which Mr

Tinney was aware) was given by the Firm to the New York Fed.

4.3.
Mr Tinney engaged the Consultancy to carry out part of the Culture Audit work:

the examination of
how the ‘tone at the top’ flowed through BWA.
The

Consultancy set out its findings in the Report, which was delivered to Mr Tinney’s

home address on 30 March 2012. The Report was only delivered in hard copy.

Another third party consultancy was engaged to ascertain how issues were

escalated from the ‘bottom up’. This consultancy set out its findings in a report

sent to the Firm by email on 19 April 2012.

4.4.
The Report is a 29 page spiral-bound document entitled ‘Barclays Wealth America

- Cultural Assessment’ and the words ‘Barclays Wealth America - Culture Audit’

appear at the top of each subsequent page. Although not a conventional audit, it

begins with the words ‘[The Consultancy] have been asked to conduct a culture

audit into BWA…’ and is clearly a report.
The Report contains a contents page, a

description of the methodology and data sources used by the Consultancy, a

summary, recommendations, descriptions of the core cultural issues identified by

the Consultancy, a review of the attitudes, skills and behaviours of BWA’s senior

management, next steps and an appendix. It was written on the basis of three

days of interviews with certain BWA employees and includes many emotive and

pejorative quotes from these interviews as the main evidence in support of

observations which are highly critical of BWA’s culture and some members of its

senior management. The Report points to a comprehensive failure by BWA to

comply with its regulatory obligations, but contains little analysis or evidence

other than the interview quotes. It does not address how the ‘tone at the top’

flowed through BWA and instead focuses on identifying and blaming those

responsible for the regulatory deficiencies identified by the SEC. It expresses an

opinion that BWA had pursued a course of revenue at all costs and had a culture

that was high risk and actively hostile to compliance.
In order to change this

culture, the Report’s main recommendation is that the Firm should replace or

consider replacing some members of BWA’s senior management and it sets out

possible scenarios. The Report does not mention or criticise Mr Tinney.

4.5.
On receiving the Report, Mr Tinney discussed its contents with his manager, the

Chief Executive of Wealth, and they agreed that the Report’s contents should be

acted upon to address the cultural failings in BWA. They also agreed that the

Report should not be seen by or made available to any other person within the

Firm (including the Chief Executive of Wealth), and Mr Tinney subsequently took

steps which aimed to ensure that this happened, including not entering the Report

into the Firm’s records or IT systems.

4.6.
During April and May 2012, on Mr Tinney’s initiative, the Consultancy orally

shared its findings with a small number of senior individuals within Wealth during

several briefings and one workshop (‘the Workshop’). The Workshop was held on

29 May 2012 and was also attended by two senior individuals within BWA and the

other third party consultancy, which shared its findings on how issues were

escalated from the ‘bottom up’. Mr Tinney did not provide a copy of the Report to

anyone during or in advance of those briefings (including the Workshop) and,

before the first briefing, gave instructions to the Consultancy that a copy of the

Report would not be needed.
At the briefings, the format of the Report was

followed, so that the main issues identified by the Consultancy in the Report were

discussed. As a consequence of the briefings and the Workshop some individuals

in Wealth either knew, suspected or assumed the Report existed, however it was

not until 6 December 2012, after the Firm had commenced an internal

investigation into the matter, that anyone in the Firm other than Mr Tinney either

saw or received a copy of the Report.

The September Note

4.7.
On 27 June 2012 the Firm announced that it had agreed to pay financial penalties

totalling £290 million issued by the Authority, the United States Commodity

Futures and Trading Commission and the United States Department of Justice for

misconduct relating to LIBOR and EURIBOR. In a press release, the Firm’s Chief

Executive at that time, Bob Diamond, said:

‘The events which gave rise to today’s resolutions relate to past actions

which fell well short of the standards to which Barclays aspires in the

conduct of its business… Nothing is more important to me than having a

strong culture at Barclays; I am sorry that some people acted in a manner

not consistent with our culture and values…’

4.8.
As a result of those events, on 2 July 2012 the Firm launched an independent

review of its business practices (which later became known as the ‘Salz Review’).

The Salz Review had three objectives:

(1)
to undertake a root and branch review of all of the past practices that had

been revealed as flawed since the credit crisis started and identify

implications for the Firm’s business practices and culture going forward;

(2)
to publish a report of its findings; and

(3)
to produce a new, mandatory code of conduct that would be applied across

the Firm.

4.9.
In a press release announcing the Salz Review, the Firm said that the review

would be ‘part of a broader programme of activity intended to restore Barclays’

reputation and […] establish a zero tolerance policy for any actions that harm the

reputation of the bank’.
To facilitate broad input into the review, the terms of

reference provided that any current or former staff involved in the process would

receive full indemnity and would be able to provide input on a non-attributable

basis so that they could participate without any fear of potential consequences.

The terms of reference also stated that in order to change the Firm’s culture, the

Firm would be required to do three things:

(1)
affirm the key values and operative beliefs that guided the behaviour of

staff at the Firm;

(2)
ensure that the actual behaviours of those who represented the Firm were

consistent with those values (and were so regarded by those who came in

contact with the Firm); and

(3)
ensure that vital reinforcing mechanisms, such as visible leadership

examples, formal and informal systems and processes, policies and

rewards were aligned with those values, operative beliefs and behaviours.

4.10.
On 25 September 2012 the Firm’s Chairman received the Anonymous Email,

which had the subject line ‘Salz Review - Confidential’.
The email asserted,

among other things, that a ‘Wealth cultural audit report … prepared by an

independent third party consultancy’ had been suppressed, and concluded by

asking that the issues it raised be shared with the Salz Review to ‘address the

deep-rooted cultural failings at Barclays Wealth in the Americas in order to protect

clients and prevent any further damage to the wider firm’s reputation.’

4.11.
The Anonymous Email was circulated on 26 September 2012 to relevant members

of the Firm’s senior management, including Mr Tinney. In the Authority’s view, it

should have been obvious to Mr Tinney that the Anonymous Email either was, or

could have been, referring to the Report. Mr Tinney has told the Authority that he

did not consider the Anonymous Email was referring to the Report because it

included some statements which were not true of the Report. In particular, the

Anonymous Email stated that the ‘Wealth cultural audit report’ had been

mandated by the Chief
Executive of Wealth (Mr Tinney
had engaged the

Consultancy to work on the Culture Audit), had been recently issued (the Report

had been issued several months previously) and had been suppressed by a senior

individual in BWA (as far as Mr Tinney was aware, nobody in BWA even knew the

Report existed). However, the Authority does not consider it reasonable for Mr

Tinney to have expected a whistleblower to get every detail of an allegation

correct and considers that the Report was clearly a document which could fit the

description in the Anonymous Email of a ‘Wealth cultural audit report’, particularly

given that every page of the Report was headed ‘Barclays Wealth America –

Culture Audit’ and no other document better fitted the description.
In the

Authority’s view, Mr Tinney closed his mind to the obvious possibility that the

Anonymous Email was referring to the Report, and also to the legitimate interest

that the Firm’s Chairman and new Chief Executive, as well as those conducting

the Salz Review, had in being made aware of the existence of the Report, and,

having closed his mind, made statements and omissions which he should have

been aware would make it less likely that he or the Consultancy would be asked

for a copy of the Report.
In doing so, the Authority considers that Mr Tinney

acted recklessly.

4.12.
The Chief Executive of Wealth decided that a note would be drafted by Wealth

responding to each of the allegations that were raised in the Anonymous Email

(the ‘September Note’) and sent by him to the Firm’s Chairman and new Chief

Executive for their consideration. Mr Tinney was aware of this and also that it

was likely that the September Note would be provided to those conducting the

Salz Review. The September Note underwent several iterations and Mr Tinney

was heavily involved in the drafting, as was a senior Wealth lawyer who had

attended the first briefing by the Consultancy and either knew, suspected or

assumed the Report existed.
In the drafts of the September Note to which he

contributed, Mr Tinney made several misleading statements and omissions:

(1)
In one version, Mr Tinney outlined the Culture Audit workstream but made

no reference to the allegation that a ‘Wealth cultural audit report’ had been

suppressed or to the existence of any document (including the Report).

After the senior Wealth lawyer asked him to comment on the allegation of

suppression, in his next draft Mr Tinney described the work undertaken by

the Consultancy as ‘verbal input’ and stated ‘There has never been a

“Wealth Cultural Audit Report” produced at any time’.

(2)
After receiving this draft, the senior Wealth lawyer sought clarification from

Mr Tinney as to the written output produced by the Consultancy. Although

Mr Tinney informed him that the Consultancy had not produced any work

that could be construed as an audit report, in his next draft Mr Tinney

removed the sentence stating ‘There has never been a “Wealth Cultural

Audit Report” produced at any time’. He also removed or replaced several

phrases implying that the Consultancy had produced a written document.

In particular, Mr Tinney:

(a)
deleted a reference to the Consultancy being ‘retained to conduct a

“Compliance Culture Audit” of BWA’ and instead characterised that

work as ‘data gathering interviews’; and

(b)
deleted a reference to there being ‘input collated’ and a ‘review [of]

the
findings’
and
instead
characterised
that
process
as

‘determin[ing] next steps’.

4.13.
The final version of the September Note made no reference to the Report and

therefore omitted important information needed to assess properly whether the

allegation of suppression had any foundation. Mr Tinney was not shown the final

version before it was sent by the Chief Executive of Wealth to the Firm’s new

Chief Executive on 2 October 2012. On the same day the Chief Executive of

Wealth updated the Firm’s Chairman and informed him that the September Note

would be forwarded to those conducting the Salz Review.

4.14.
Later that month the senior Wealth lawyer attempted to obtain a copy of the

Report directly from the Consultancy. The Consultancy declined to provide a copy

after discussing the matter with Mr Tinney. On 20 October 2012 and 2 November

2012 Mr Tinney spoke to the senior Wealth lawyer about the work produced by

the Consultancy, including whether the Consultancy had produced a report. Mr

Tinney therefore would have continued to have the Report in his mind during the

months following the September Note.

The New York Fed’s request

4.15.
On 29 November 2012 the Firm’s Global Head of Regulatory Relations sent Mr

Tinney an email headed ‘BWA’ in which she asked for a copy of the ‘cultural audit’.

Mr Tinney was not told at that time that the reason for her request was that the

New York Fed had requested the document.

4.16.
In response, Mr Tinney asked a colleague to arrange for the Global Head of

Regulatory Relations to be supplied with a PowerPoint deck which had been

created following the
Workshop.
When the colleague identified the work

undertaken by the Consultancy as being potentially relevant to the request and

noted to Mr Tinney that he had not seen any output from that work, Mr Tinney

replied that ‘the only substantive input/output [of the Culture Audit] was from the

[Workshop].’ However, Mr Tinney knew that the Report was both a substantive

output of the Culture Audit and a substantive input to the Workshop.

4.17.
On 6 December 2012 Mr Tinney received further emails from the Global Head of

Regulatory Relations in connection with the request. In those emails, Mr Tinney

was informed that:

(1)
a report was needed, the original request was from the New York Fed, and

the New York Fed was ‘chasing’ for a response;

(2)
the PowerPoint deck was not the document that the New York Fed was

looking for; and

(3)
the New York Fed was looking for a document which was drafted in the

course of the ‘BWA Culture workstream’ and was composed of a ‘“look

back” type of review after the SEC exam assessing: 1) why did the tone at

the top … not filter down to the bottom; and 2) what issues were there

around escalation going from the ground up?’

4.18.
In response to these emails, Mr Tinney made statements which suggested the

Report did not exist, namely:

(1)
that he did not know ‘to what extent there was a look back in the work’

that had been done.
However, Mr Tinney knew that the work carried out

by the Consultancy was looking back and was in the nature of an audit,

and would have known that the phrase ‘tone at the top’ was used in the

commissioning of the Consultancy’s work
and in the briefings and

Workshop that followed the Report; and

(2)
that they could ‘create something if that would be helpful’.
However, Mr

Tinney knew that the Report already existed and it should have been

obvious to him that the Report was likely, at least in part, to have satisfied

the New York Fed’s request.

4.19.
On 10 December 2012 Mr Tinney attended a meeting with the Global Head of

Regulatory Relations and others to discuss what should be provided to the New

York Fed to satisfy its request.
During that meeting, Mr Tinney said he had

received from the Consultancy a document he described as ‘interview notes’,

‘interview material, ‘a summary of interview notes’, ‘rough notes’ or similar. This

led the Global Head of Regulatory Relations to conclude that the document Mr

Tinney described was not what the New York Fed was looking for. The Authority

considers that Mr Tinney’s descriptions of the Report, and the statements and

omissions made by Mr Tinney regarding the existence of the Report, were

misleading. In the Authority’s view, Mr Tinney closed his mind to the possibility

that the Report could help to satisfy the New York Fed’s request and, having

closed his mind, made statements and omissions which he should have been

aware would make it less likely that the Global Head of Regulatory Relations or

the New York Fed would ask for a copy of the Report. In doing so, the Authority

considers that Mr Tinney acted recklessly.

4.20.
During the course of the events described in paragraphs 4.10 to 4.19 above, the

Firm commenced an investigation into the existence of the Report and received a

copy of it directly from the Consultancy
on 6 December 2012,
which it

subsequently provided to the New York Fed. The Firm suspended Mr Tinney’s

employment on or about 17 December 2012 and Mr Tinney resigned shortly

thereafter.

Provision of misleading information to the ICAEW and to the Authority

4.21.
In September 2013 the ICAEW (of which Mr Tinney is a member) asked Mr Tinney

to provide it with information about the events that led to his resignation from the

Firm.
In a written response, Mr Tinney’s solicitors stated that the manner in

which he handled the hard copy Report was ‘consistent with the advice of’ the

Firm’s in-house lawyers, who had ‘advised what should be said and done with it in

April 2012’.
They also stated that it was his ‘understanding of the legal advice

that he had received… that the [Report] should not be entered into Barclays’

computer system because of the litigation risk it posed.’ However, Mr Tinney had

not in fact sought or obtained any such legal advice in April 2012, and he

subsequently admitted this in compelled interviews with the Authority on 29 July

2014 and 23 January 2015. The Authority considers that Mr Tinney permitted

these statements to be made in order to avoid criticism of his conduct and that he

should have realised that these statements were inaccurate and that his response

to the ICAEW was therefore misleading.

4.22.
As described in paragraphs 4.23 to 4.26 below, Mr Tinney made a number of

statements to the Authority during the compelled interviews of 29 July 2014 and

23 January 2015 about certain matters prior to and during the Relevant Period,

which the Authority considers were misleading. The Authority considers that Mr

Tinney made these statements in order to avoid criticism of his conduct and that

he should have realised that the statements were misleading.

4.23.
Mr Tinney told the Authority that he expressly instructed the Consultancy not to

produce anything in writing and had been surprised when he learnt that the

Report was going to be delivered to him. He told the Authority that he expressed

his surprise to his Chief of Staff, and that she told him she had instructed the

Consultancy to prepare a written report.
The Authority considers that other

witness
and documentary evidence indicates that Mr Tinney gave no such

instruction, was not surprised by the delivery of the Report, and was not told by

his Chief of Staff that she had given that instruction.

4.24.
The Authority showed Mr Tinney an email in which he appeared to instruct the

Consultancy not to bring a copy of the Report to the first briefing. Mr Tinney told

the Authority in his first interview that the email related to a different document.

This was inconsistent with the account given by the Consultancy and Mr Tinney’s

Chief of Staff. Mr Tinney subsequently accepted in his second interview that he

had given this instruction to the Consultancy.

4.25.
Mr Tinney told the Authority that he instructed the Consultancy in April and

October 2012 to retain a copy of the Report and to provide it to anyone from the

Firm who asked for a copy without reference to him.
The Consultancy told the

Authority that no such instruction was given until December 2012.

4.26.
Mr Tinney told the Authority that during the 10 December 2012 meeting,

described at paragraph 4.19 above, he recommended giving a copy of the Report

to the New York Fed.
The Authority considers that other witness
and

documentary evidence indicates that Mr Tinney only referred to the existence of

‘interview notes’ or similar and offered in passing to obtain them.

4.27.
The Authority has reviewed Mr Tinney’s statements in the light of the witness and

documentary evidence gathered during the course of its investigation and has

given Mr Tinney the opportunity to explain any discrepancies. It has also taken

account of the varying strength of that evidence and other relevant factors, such

as the possibility of genuine differences in recollection amongst witnesses.

Having done so, the Authority has determined
that Mr Tinney made the

statements described in paragraphs 4.23 to 4.26 above out of a desire to avoid

criticism of his conduct, and that in doing so he was reckless as to the accuracy of

the answers he gave to the Authority’s questions.

Inconsistency in Mr Tinney’s actions

4.28.
The Authority has considered the evidence and submissions that are relevant to

the issues of why Mr Tinney took the course of action that he did in relation to the

Report and why he made misleading statements and omissions in connection with

the September Note and the New York Fed’s request. The Authority notes that Mr

Tinney was not criticised by the Report, did not seek to suppress its conclusions,

and initiated actions that made others aware of some of the Report’s findings and

which were intended to address some of the BWA cultural issues identified by the

SEC and in the Report.
The Authority considers that Mr Tinney did have

legitimate concerns at the outset around the litigation risk and employment law

consequences about the Report being circulated.
However, the Authority

concludes that he did not take the course of action in September and December

2012 that was both obvious and correct, which would have been to make clear

the existence of the Report, explain its potential litigation risk and offer to provide

a copy to those preparing the September Note, its ultimate recipients, the Global

Head of Regulatory Relations and the New York Fed, subject to appropriate

confidentiality restrictions. The Authority does not consider it is necessary to

determine what Mr Tinney’s motive or motives were for making the misleading

statements and omissions, nor to reconcile his apparently contradictory actions, in

order to reach the conclusion that he recklessly made such statements and

omissions.

5.
FAILINGS

5.1.
The regulatory provisions relevant to this Notice are referred to in Annex A.

5.2.
During the Relevant Period, Statement of Principle 1 provided that an approved

person must act with integrity in carrying out his controlled function. Mr Tinney,

in the course of carrying out the CF29 (Significant Management) controlled

function, breached Statement of Principle 1 during the Relevant Period as set out

in paragraphs 5.5 to 5.12 below.

Background: Mr Tinney’s conduct before the Relevant Period

5.3.
Prior to 26 September 2012 Mr Tinney took steps which aimed to ensure that the

Report would not be seen by or available to anyone else at the Firm. He did this

by not sharing the Report with anyone, not entering it into the Firm’s records or

IT systems and instructing the Consultancy that they did not need to circulate a

copy. However, Mr Tinney also ensured that the Consultancy’s findings were

orally shared with certain Wealth and BWA senior individuals, and that the

cultural failings in BWA identified in the Report were addressed, by arranging

several briefings and the Workshop. The Authority makes no criticism of Mr

Tinney’s conduct prior to the Relevant Period.

Mr Tinney’s conduct during the Relevant Period

5.4.
Having taken steps which aimed to ensure that the Report would not be seen by

or available to anyone else at the Firm, Mr Tinney recklessly made a number of

misleading statements and omissions during the Relevant Period about the

Report’s nature and/or existence which he should have been aware would make it

less likely that he or the Consultancy would be asked for a copy, thereby delaying

or hindering (or potentially delaying or hindering): (i) the Firm’s Board from

assessing the truth of the allegations relating to the suppression of a ‘Wealth

cultural audit report’; and (ii) the Firm’s response to the New York Fed’s request.

Misleading statements and omissions in connection with the September

5.5.
In the course of drafting the September Note, Mr Tinney closed his mind to the

possibility that the Anonymous Email was referring to the Report, and also to the

legitimate interest that the ultimate recipients of the September Note had in

being made aware of the existence of the Report, and made a number of

misleading statements and omissions as to the nature and/or existence of the

Report which he should have been aware would make it less likely that the

ultimate recipients of the September Note would ask for a copy of the Report.

5.6.
Mr Tinney’s conduct in this regard lacked integrity.
The Report was plainly a

document which could fit the description in the Anonymous Email of a ‘Wealth

cultural audit report’ (particularly given that every page of the Report was headed

‘Barclays Wealth America - Culture Audit’).
Accordingly, it should have been

evident to Mr Tinney that the September Note would be incomplete unless it

disclosed the Report’s existence.

5.7.
In those circumstances, the amendments that Mr Tinney made to the September

Note (paragraph 4.11 above) were misleading and made recklessly. In particular,

in inserting the words ‘There has never been a “Wealth Cultural Audit Report”

produced at any time’ (see paragraph 4.11(1)), Mr Tinney closed his mind to the

obvious possibility that the Report could fit that description.
Although Mr Tinney

subsequently deleted those words
when challenged, his later amendments

(paragraph 4.11(2)) did not refer to the existence of any written document

containing the Consultancy’s findings.
As a result, his conduct risked delaying or

frustrating
the Firm’s
Board’s
ability to establish whether there was any

foundation for the allegations of misconduct in the Anonymous Email.

5.8.
Further, the Firm’s response to allegations in the Anonymous Email about

suppression and the Report itself were both potentially relevant to the Salz

Review. Mr Tinney should have been transparent about the Report, which was

clearly of relevance to the allegations made in the Anonymous Email, in order to

co-operate with those conducting the Salz Review and set the right example to

others, given that:

(1)
he was aware that the September Note was likely to be provided to those

conducting the Salz Review;

(2)
the Salz Review arose from the Firm’s desire to remedy potential cultural

failings that led to the LIBOR Settlements and the associated financial and

reputational damage that the Firm suffered as a result;

(3)
Mr Tinney was aware that the Report was not held within the Firm’s

records or IT systems; and

(4)
as Chief Operating Officer of Wealth, Mr Tinney held an influential role,

which included responsibility for Wealth’s Compliance function.

5.9.
Instead, by recklessly making misleading statements and omissions in relation to

the nature and/or existence of the Report, Mr Tinney demonstrated the failure of

cultural leadership that the Salz Review was intended to address and the Culture

Audit purportedly intended to identify and improve.

Misleading statements and omissions in connection with the New York

Fed’s request

5.10.
Mr Tinney recklessly made misleading statements and omissions in response to

the request from the Firm’s Global Head of Regulatory Relations for a copy of the

BWA ‘cultural audit’.
The Report was plainly a document which could fit that

description (especially given that every page of the Report was headed ‘Barclays

Wealth America - Culture Audit’ and it began with the words ‘[We] have been

asked to conduct a culture audit into BWA…’). This was even clearer when:

(1)
one of Mr Tinney’s colleagues identified the work done by the Consultancy

as being potentially relevant to the request (paragraph 4.18 above); and

(2)
Mr Tinney was told that the New York Fed was seeking a ‘“look back” type

of review after the SEC exam, assessing: 1) why did the tone at the top…

not filter down to the bottom; and 2) what issues were there around

escalation going from the ground up’ (paragraph 4.17(3) above).

5.11.
Additionally, in the meeting of 10 December 2012 (see paragraph 4.19 above), Mr

Tinney recklessly described the Report in misleading language, using the terms

‘rough notes’, ‘interview material’, ‘interview notes’ or similar. That language did

not fairly and accurately reflect the nature and content of the Report and, like the

misleading statements and omissions referred to in paragraph 5.10, made it less

likely that the Global Head of Regulatory Relations or the New York Fed would ask

for a copy of the Report.
The Authority concludes that Mr Tinney made these

misleading statements and omissions because he had closed his mind to the

obvious possibility that the Report could, at least in part, have satisfied the New

York Fed’s request.

5.12.
In those circumstances, Mr Tinney’s
statements and omissions were made

recklessly and risked frustrating the endeavours of the Global Head of Regulatory

Relations to comply with the New York Fed’s request on behalf of the Firm. Mr

Tinney’s conduct in this regard lacked integrity.

Lack of fitness and propriety

5.13.
The relevant sections of FIT are set out in Annex A.

5.14.
The Authority considers that Mr Tinney is not a fit and proper person as he lacks

integrity. This is based on the Authority’s finding that Mr Tinney acted in breach

of Statement of Principle 1 during the Relevant Period by recklessly making

misleading statements and omissions in relation to matters relevant to regulatory

compliance,
and
that he subsequently gave misleading
accounts
of certain

matters in correspondence, through his solicitors, with the ICAEW and directly in

compelled interviews with the Authority (as to which see paragraphs 4.21 to 4.27

above). As a result of Mr Tinney’s actions, the Authority concludes that Mr Tinney

cannot be relied upon to be truthful and open.

6.
SANCTION

6.1.
The principal purpose of issuing a public censure is to promote high standards of

regulatory conduct by deterring persons who have committed breaches from

committing further breaches and helping to deter other persons from committing

similar breaches, as well as demonstrating generally the benefits of compliant

behaviour.

6.2.
DEPP 6.4.2 sets out factors that may be of particular relevance when the

Authority determines whether it is appropriate to issue a public censure rather

than impose a financial penalty. The criteria are not exhaustive and DEPP

6.4.1G(1) provides that the Authority will consider all the relevant circumstances

when deciding whether to impose a penalty or issue a public censure. The

Authority considers that the factors below are particularly relevant in this case.

Deterrence (DEPP 6.4.2G(1))

6.3.
In determining whether to publish a statement of Mr Tinney’s misconduct, the

Authority has had regard to the need to send a clear message that the Authority

considers that the reckless making of misleading statements and omissions by an

individual performing a significant influence controlled function constitutes serious

misconduct, and to the need to ensure that Mr Tinney and other persons are

deterred from committing similar breaches in the future. The Authority considers

that, in the circumstances of this case, deterrence is effectively achieved by

issuing a public censure.

The seriousness of the breaches (DEPP 6.4.2G(3))

6.4.
As mentioned in paragraph 6.3 above, the Authority considers that the reckless

making of misleading statements and omissions by an individual performing a

significant influence controlled function constitutes serious misconduct. While the

Authority considers that a person of integrity in Mr Tinney’s position would not

have failed to mention the Report’s existence in drafting the September Note and

in response to the New York Fed’s request, and would not have made misleading

statements, the Authority considers that the following factors, which are relevant

to the Authority’s assessment of the seriousness of Mr Tinney’s misconduct,

support its view that the appropriate sanction is a public censure rather than a

financial penalty:

(1)
Mr Tinney did not personally profit as a result of his misconduct, and his

misconduct did not result in loss to consumers, investors or other market

users or increase the existing risk of loss to the Firm’s clients that had

been identified by the SEC.

(2)
The Authority does not conclude that Mr Tinney made the statements and

omissions with a deliberate intention to mislead.

(3)
The Relevant Period was relatively brief.

Mitigating factors

6.5.
The Authority has taken account of the mitigating factors mentioned below.

While these factors do not excuse Mr Tinney’s actions, especially as Mr Tinney

was a senior individual at the Firm approved to carry out the CF29 (Significant

Management) controlled function and therefore required to meet certain minimum

standards whatever the environment he worked in, the Authority considers that

they support its conclusion that, whilst Mr Tinney’s failings were serious, the

appropriate sanction to be imposed on him is a public censure.

(1)
Mr Tinney initiated both the Culture Audit workstream and the steps

designed to address some of the BWA cultural issues identified in the

Report. The Authority considers that Mr Tinney genuinely did hope that

the Culture Audit workstream would in due course help to improve the

Firm’s culture and compliance with regulatory requirements, and reduce

the risk of loss to consumers, investors or other market users, albeit his

conduct during the Relevant Period was inconsistent with these goals.

(2)
As the Report is highly critical of BWA and some members of its senior

management, and recommends that the Firm should replace or consider

replacing some members of BWA’s senior management, the Authority

considers it potentially carried some litigation risk and that it is therefore

understandable why Mr Tinney, after discussion with his manager, took

steps prior to the Relevant Period which aimed to ensure it was not seen

by or available to others.

Prohibition order

6.6.
The Authority has the power to prohibit individuals under section 56 of the Act.

The Authority has had regard to the guidance in Chapter 9 of EG in considering

whether to impose a prohibition order on Mr Tinney.

6.7.
The Authority considers that Mr Tinney is not a fit and proper person to perform

any senior management function or any significant influence function in relation

to any regulated activity carried on by an authorised person, exempt person or

exempt professional firm and has decided that a prohibition order should be

imposed on him under section 56 of the Act in those terms. The prohibition order

is based on the Authority’s conclusions that Mr Tinney:

(1)
failed to comply with Statement of Principle 1 during the Relevant Period

by recklessly making misleading statements and omissions in relation to

matters relevant to regulatory compliance;

(2)
subsequently recklessly gave a misleading account of certain matters in

correspondence with the ICAEW (through his solicitors) and in interview

with the Authority; and

(3)
as a consequence, lacks integrity.

6.8.
In deciding to impose the prohibition order, the Authority has taken account of

the factors mentioned in paragraphs 6.3 to 6.5 of this Notice, and has concluded

that, on the basis of Mr Tinney’s reckless conduct in the course of carrying out the

CF29 (Significant Management) controlled function, the prohibition order is

appropriate in order to support the Authority’s regulatory objectives of protecting

and enhancing the integrity of the UK financial system
and securing an

appropriate degree of protection for consumers.

7.
REPRESENTATIONS

7.1.
Annex B contains a brief summary of the key representations made by Mr Tinney

and how they have been dealt with. In making the decision which gave rise to

the obligation to give this Notice, the Authority has taken into account all of the

representations made by Mr Tinney, whether or not set out in Annex B.

8.
PROCEDURAL MATTERS

8.1.
This Notice is given to Mr Tinney under sections 57 and 67 and in accordance with

section 388 of the Act.

Decision maker

8.2.
The decision which gave rise to the obligation to give this Notice was made by the

Regulatory Decisions Committee.

The Tribunal

8.3.
Mr Tinney has the right to refer the matter to which this Notice relates to the

Tribunal. Under paragraph 2(2) of Schedule 3 of the Tribunal Procedure (Upper

Tribunal) Rules 2008, Mr Tinney has 28 days from the date on which this Notice is

given to him to refer the matter to the Tribunal. A reference to the Tribunal is

made by way of a signed reference form (Form FTC3) filed with a copy of this

Notice. The Tribunal’s contact details are: The Upper Tribunal, Tax and Chancery

9730; email: fs@hmcts.gsi.gov.uk).

8.4.
Further information on the Tribunal, including guidance and a link to ‘Forms and

leaflets’ which include Form FTC3 and notes on that form, can be found on the HM

Courts and Tribunal Service website:

8.5.
A copy of Form FTC3 must also be sent to Martha Stokes at the Financial Conduct

Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS at the same

time as filing a reference with the Tribunal.

Access to evidence

8.6.
Section 394 of the Act applies to this Notice. In accordance with section 394, Mr

Tinney has the right to access:

(1)
the material upon which the Authority has relied in deciding to give this

Notice; and

(2)
the secondary material which, in the opinion of the Authority, might

undermine that decision.

8.7.
This material was enclosed with the Warning Notice given to Mr Tinney on 14

December 2015.

Confidentiality and publicity

8.8.
This Notice may contain confidential information and should not be disclosed to a

third party (except for the purpose of obtaining advice on its contents).
In

accordance with section 391 of the Act, a person to whom this Notice is given or

copied may not publish the Notice or any details concerning it unless the

Authority has published the Notice or those details.

8.9.
However, the Authority must publish such information about the matter to which

a decision notice or final notice relates as it considers appropriate. Mr Tinney

should be aware, therefore, that the facts and matters contained in this Notice

may be made public.

8.10.
For more information concerning this matter generally, please contact Martha

Stokes
at
the
Authority
(direct
line:
020
7066
0894
/
email:

martha.stokes@fca.org.uk).

Beverley Walker, DMC Secretariat Manager, on behalf of

Deputy Chair, Regulatory Decisions Committee

ANNEX A

RELEVANT STATUTORY AND REGULATORY PROVISIONS

1.
RELEVANT STATUTORY PROVISIONS

1.1.
The Authority’s general duties established in section 1B of the Act include the

strategic objective of ensuring that the relevant markets function well and the

operational objectives
of
protecting
and enhancing
the integrity of the UK

financial system and securing an appropriate degree of protection for consumers.

1.2.
Section 66 of the Act provides that the Authority may take action against a person

if it appears to the Authority that he is guilty of misconduct and the Authority is

satisfied that it is appropriate in all the circumstances to take action against him.

A person is guilty of misconduct if, while an approved person, he has failed to

comply with a Statement of Principle issued under section 64 or section 64A of

the Act, or has been knowingly concerned in a contravention by a relevant

authorised person of a relevant requirement imposed on that authorised person.

1.3.
Section 56 of the Act provides that the Authority may make a prohibition order

prohibiting an individual from performing a specified function, any function falling

within a specified description, or any function, if it appears to the Authority that

the individual is not a fit and proper person to perform functions in relation to a

regulated activity carried on by an authorised person, exempt person or a person

to whom, as a result of Part 20 of the Act, the general prohibition does not apply

in relation to that activity. Such an order may relate to a specified regulated

activity, any regulated activity falling within a specified description, or all

regulated activities.

2.
RELEVANT REGULATORY PROVISIONS

Statements of Principle and Code of Practice for Approved Persons

2.1.
During the Relevant Period, Statement of Principle 1 stated:

‘An approved person must act with integrity in carrying out his controlled

function.’

2.2.
The Code of Practice for Approved Persons in APER sets out descriptions of

conduct which, in the opinion of the Authority, does not comply with a Statement

of Principle. It also sets out factors which, in the Authority’s opinion, are to be

taken into account in determining whether an approved person’s conduct complies

with a Statement of Principle.

The Fit and Proper Test for Approved Persons

2.3.
FIT sets out the criteria that the Authority will consider when assessing the fitness

and propriety of a candidate for a controlled function. FIT is also relevant in

assessing the continuing fitness and propriety of an approved person.

2.4.
FIT 1.3.1G states that the Authority will have regard to a number of factors when

assessing the fitness and propriety of a person. The most important

considerations will be the person’s honesty, integrity and reputation, competence

and capability and financial soundness.

2.5.
In determining a person’s honesty, integrity and reputation, FIT 2.1.1G provides

that the Authority will have regard to all relevant matters including but not

limited to, those set out in FIT 2.1.3G. FIT 2.1.3G includes whether the person

has been dismissed, or asked to resign and resigned, from employment or from a

position of trust, fiduciary appointment or similar (FIT 2.1.3G(11)).

The Authority’s policy for exercising its power to make a prohibition order

2.6.
The Authority’s policy in relation to prohibition orders is set out in Chapter 9 of

EG.

2.7.
EG 9.1.1 provides that the Authority’s power under section 56 of the Act to

prohibit individuals who are not fit and proper from carrying out controlled

functions in relation to regulated activities helps the Authority to work towards

achieving its statutory objectives. The Authority may exercise this power to make

a prohibition order where it considers that, to achieve any of those objectives, it is

appropriate either to prevent an individual from performing any functions in

relation to regulated activities, or to restrict the functions which he may perform.

2.8.
EG 9.2.2 sets out the general scope of the Authority’s powers in respect of

prohibition orders, which include the power to make a range of prohibition orders

depending on the circumstances of each case and the range of regulated activities

to which the individual’s lack of fitness and propriety is relevant.

2.9.
EG 9.5 provides guidance on the Authority’s exercise of its power to make a

prohibition order against an individual who is not an approved person.
The

Authority will consider the severity of the risk posed by the individual and may

prohibit the individual where it considers this is appropriate to achieve one or

more of its statutory objectives.

2.10.
When considering whether to exercise its power to make a prohibition order

against such an individual, the Authority will consider all the relevant

circumstances of the case. These may include, but are not limited to, the factors

set out in EG 9.3.2.

2.11.
EG 9.3.2 states that, when deciding whether to make a prohibition order against

an approved person and/or withdraw his approval, the Authority will consider all

the relevant circumstances of the case which may include, but are not limited to,

the following factors:

(1)
whether the individual is fit and proper to perform functions in relation to

regulated activities. The criteria for assessing the fitness and propriety of

approved persons are set out in FIT 2.1 (Honesty, integrity and

reputation); FIT 2.2 (Competence and capability) and FIT 2.3 (Financial

soundness) (EG 9.3.2(2));

(2)
whether, and to what extent, the approved person has:

(a)
failed to comply with the Statements of Principle issued by the FCA

with respect to the conduct of approved persons; or

(b)
been knowingly concerned in a contravention by the relevant firm of

a requirement imposed on the firm by or under the Act (including

the Principles and other rules) or failed to comply with any directly

applicable Community regulation made under MiFID or any directly

applicable provision of the auction regulation (EG 9.3.2(3));

30

(3)
the relevance and materiality of any matters indicating unfitness (EG

9.3.2(5));

(4)
the length of time since the occurrence of any matters indicating unfitness

(EG 9.3.2(6));

(5)
the particular controlled function the approved person is (or was)

performing, the nature and activities of the firm concerned and the

markets in which he operates (EG 9.3.2(7)); and

(6)
the previous disciplinary record and general compliance history of the

individual including whether the Authority, any previous regulator,

designated professional body or other domestic or international regulator

has previously imposed a disciplinary sanction on the individual (EG

9.3.2(9)).

2.12.
EG 9.3.5 sets out examples of types of behaviour which have previously resulted

in the Authority deciding to issue a prohibition order or withdraw the approval of

an approved person. These include but are not limited to:

(1)
providing false or misleading information to the Authority; including

information relating to identity, ability to work in the United Kingdom and

business arrangements (EG 9.3.5(1)); and

(2)
serious breaches of the Statements of Principle for approved persons (EG

9.3.5(5)).

DEPP

2.13.
Chapter 6 of DEPP sets out the Authority’s approach to deciding whether to issue

a public censure. In particular, DEPP 6.4.2G sets out factors that may be of

particular relevance when the Authority determines whether it is appropriate to

issue a public censure rather than impose a financial penalty.

ANNEX B

REPRESENTATIONS

1.
Mr Tinney’s representations (in italics), and the Authority’s conclusions in respect of

them, are set out below:

Background Matters

Events preceding the Relevant Period

2.
There were proper reasons for Mr Tinney not to distribute a physical copy of the

Report and not to enter the Report into the Firm’s records or IT systems. For

example, the Report outlined conclusions but provided little express analysis or

evidence, contained identifiable quotes and comments from some interviewees and

specific recommendations in relation to a number of members of BWA’s senior

management, despite the participants having been assured that everything they

shared with the Consultancy would be confidential unless otherwise agreed with

them, and carried a litigation risk.

3.
The Authority considers that Mr Tinney had legitimate concerns at the outset about

the Report being circulated and makes no criticism of the decision not to circulate the

Report.

Knowledge of Mr Tinney’s colleagues

4.
Several of Mr Tinney’s colleagues knew that the Report existed, and the findings of

the Report were disseminated and acted upon. This renders unsustainable the

allegations that Mr Tinney attempted, in full view of some of these colleagues, to

mislead as to the existence or nature of the Report.

5.
The Authority considers that its conclusion that Mr Tinney made the misleading

statements and omissions recklessly, having closed his mind to the obvious

possibility that the Anonymous Email and the New York Fed’s request were referring

to the Report, is compatible with several of Mr Tinney’s colleagues having knowledge

of the Report’s existence and with the fact that the findings of the Report were

disseminated and acted upon.

6.
Mr Tinney had no motive to conceal the Report and therefore had no motive to make

misleading statements or omissions. The Report does not mention or criticise Mr

Tinney; the Culture Audit was Mr Tinney’s initiative, so it would have been bizarre for

him to seek to suppress the Report in circumstances where he was seeking to

improve the corporate culture within BWA; and Mr Tinney had nothing to gain by the

concealment of the Report and everything to lose by such actions.

7.
As explained in paragraph 4.28 of this Notice, the Authority has considered the

evidence and submissions that are relevant to the issues of why Mr Tinney took the

course of action that he did in relation to the Report and why he made the misleading

statements and omissions. The Authority notes that Mr Tinney was not criticised by

the Report, did not seek to suppress its conclusions, and initiated actions that made

others aware of some of the Report’s findings and which were intended to address

some of the BWA cultural issues identified by the SEC and in the Report. The

Authority considers that Mr Tinney had legitimate concerns at the outset about the

Report being circulated. However, he did not take the course of action in September

and December 2012 that was both obvious and correct, which would have been to

make clear the existence of the Report, explain its potential litigation risk and offer to

provide a copy to those preparing the September Note, its ultimate recipients, the

Global Head of Regulatory Relations and the New York Fed, subject to appropriate

confidentiality restrictions. The Authority does not consider it is necessary to

determine what Mr Tinney’s motive or motives were for making the misleading

statements and omissions, nor to reconcile his apparently contradictory actions, in

order to reach the
conclusion that he recklessly made
such
statements and

omissions.

The September Note

Mr Tinney reasonably believed the Anonymous Email was not referring to the Report

8.
Mr Tinney was aware of the possibility that a whistleblower may not get every detail

of an allegation correct, but believed in good faith that the reference in the

Anonymous Email to a ‘Wealth cultural audit report’ was not a reference to the

Report. This was for several reasons including that the Report had not been

mandated by the Chief Executive of Wealth, had not been ‘recently issued’ and could

not have been suppressed by a senior individual in BWA.

9.
The fact that each page of the Report was headed ‘Barclays Wealth America – Culture

Audit’ is not determinative. All it indicates is that the Report was produced as an

input into the Culture Audit workstream.

10. The work product emanating from the Workshop better fitted the description of a

‘Wealth cultural audit report’ in the Anonymous Email, and this was Mr Tinney’s view

at the time.

11. The reasonableness of Mr Tinney’s belief that the reference in the Anonymous Email

to a ‘Wealth cultural audit report’ was not a reference to the Report is supported by

the fact that the Chief Executive of Wealth’s contemporaneous view was that the

Anonymous Email was wrong to claim that a ‘Wealth cultural audit report’ had been

suppressed.

12. The contention that the Anonymous Email was referring to the Report must be

rejected because the Report does not fit the description in the Anonymous Email. If

the Anonymous Email was not referring to the Report, there can be no criticism of Mr

Tinney. If the Anonymous Email might have been referring to the Report, Mr Tinney

should not be criticised for believing in good faith that the Anonymous Email was not

referring to the Report.

13. As the Authority has not found that the Report was suppressed, it follows that the

allegation of suppression in the Anonymous Email cannot have been a reference to

the Report, and that it was reasonable for Mr Tinney to believe that.

14. The Authority considers that, although there are some discrepancies between the

Report and the description in the Anonymous Email, the Report was clearly a

document which could fit the description in the Anonymous Email of a ‘Wealth

cultural audit report’, particularly given that every page of the Report was headed

‘Barclays Wealth America – Culture Audit’. The Authority considers that the work

product from the Workshop, which consisted of a PowerPoint deck of slides setting

out action points agreed at the Workshop and next steps for the Culture Audit

workstream, could not reasonably be considered a cultural audit report and so did not

better fit the description in the Anonymous Email. In the Authority’s view, Mr Tinney

closed his mind to the obvious possibility that the Anonymous Email was referring to

the Report and it was not reasonable for him to proceed on the basis that the

Anonymous Email could not have been referring to the Report.
In any event, even

having closed his mind to the obvious possibility that the Report was the subject of

the Anonymous Email, the description in the Anonymous Email was sufficiently close

to that of the Report such that a reference to the existence of the Report would

naturally have formed part of an open and diligent response.

Previous whistleblowing emails

15. The Anonymous Email was the third in a sequence of anonymous whistleblowing

emails which made allegations about BWA. The allegations in the previous two

emails did not appear to be well-founded, so it was natural for Mr Tinney (and the

Chief Executive of Wealth) to start from the position that the Anonymous Email

contained allegations which were also wide of the mark.

16. The Authority does not consider that the existence of two previous whistleblowing

emails, which made allegations which Mr Tinney considered were not well-founded,

justified him approaching the allegations in the Anonymous Email with the view that

they were also not well-founded. In any event, Mr Tinney should have been aware

that the Anonymous Email could have been referring to the Report. He was aware of

the gravity of the concerns that had led to the Report being produced and of the

serious issues raised in the Report. He therefore should have been truthful and open

about the nature and existence of the Report.

Mr Tinney was not responsible for the September Note

17. Mr Tinney was one of at least three employees of the Firm assisting the Chief

Executive of Wealth with the drafting of a note which the Chief Executive was

ultimately responsible for approving and deciding to whom it should be sent. He was

therefore not in a position to ensure that the final version of the September Note took

any particular position in relation to the Report. This is demonstrated by the fact that

Mr Tinney was not involved in the final two drafts of the September Note and some of

his drafting was deleted before the final draft without his knowledge. Instead, it was

the Chief Executive who, knowing about the Report and having responsibility for the

September Note, was ultimately responsible for the September Note not mentioning

the Report.

18. Mr Tinney cannot properly or fairly be singled out for a lack of integrity in the context

of a collaborative drafting exercise involving a number of people who knew about the

existence of the Report and with reference to drafting that was never included in the

final draft of the September Note.

19. The Authority acknowledges that other employees contributed to the drafting of the

September Note which was to be sent by the Chief Executive of Wealth, that Mr

Tinney was not involved in the drafting of the final two drafts and that some of Mr

Tinney’s drafting was deleted without his knowledge. However, the Authority

considers that Mr Tinney should bear responsibility for his own drafting, in particular

in relation to matters of which he had particular knowledge, such as the nature of the

Report, and that the involvement of others with differing levels of knowledge about

the Report is not inconsistent with a finding that Mr Tinney recklessly made

misleading statements and omissions in the drafts of the September Note to which he

contributed.

Knowledge of the Chief Executive of Wealth and a senior Wealth lawyer

20. It is unsustainable to allege that Mr Tinney sought to insert misleading drafting into

the September Note, in circumstances where: (i) Mr Tinney’s manager, the Chief

Executive of Wealth, commissioned and oversaw the drafting of the September Note

and was aware of the existence and contents of the Report; and (ii) a senior Wealth

lawyer knew of the existence of the Report, broadly knew of its contents, and

authored or was copied on each of the drafts of the September Note.

21. As the Chief Executive of Wealth was aware of the existence and contents of the

Report, the only reasonable assessment of Mr Tinney’s contributions to the drafting

process is that Mr Tinney was suggesting drafting that he believed, in good faith, to

have been compatible with the existence of the Report. It is not reasonable to allege

that Mr Tinney would have suggested drafting that he would have known would result

in the Chief Executive misleading the Firm’s executive management in circumstances

where the Chief Executive would immediately know that the drafting was misleading

and it is not alleged that there was any collusion between Mr Tinney and the Chief

Executive.

22. The
Authority considers that Mr Tinney made the misleading statements and

omissions recklessly, having closed his mind to the obvious possibility that the

36

Anonymous Email was referring to the Report. The Authority considers that this

conclusion is valid even if the Chief Executive of Wealth and a senior Wealth lawyer

had some knowledge of the Report’s existence and were recipients of the drafting

that Mr Tinney contributed to the September Note.

Mr Tinney’s drafting was reasonable and not misleading

23. Mr Tinney
did not at first address the suppression allegation in drafting the

September Note because he did not think there was any such cultural audit report.

He did however reference the Culture Audit workstream into which the Report had

been an input.

24. The statement ‘There has never been a “Wealth Cultural Audit Report” produced at

any time’ was consistent with Mr Tinney’s honestly held belief that the Anonymous

Email had made an unfounded allegation of suppression of an audit report and was

not referring to the Report. In addition, it was reasonable for Mr Tinney to take the

view that the Report was not an ‘audit report’, as others, including the Consultancy,

shared this view.

25. The description of the work undertaken by the Consultancy as ‘verbal input’ was

accurate as it was a description of the Consultancy’s input to the Workshop.

26. The allegation in paragraph 4.12(2) that Mr Tinney removed or replaced several

phrases implying that the Consultancy had produced a written document is an unsafe

basis for a finding of a lack of integrity, given that:

a.
None of the three deleted terms actually expressly refer to a written

document;

b.
That draft still referred to the fact that the Consultancy had produced

‘interview notes and working papers’ which is a clear reference to the fact that

the Consultancy produced written materials in the course of its work; and

c.
Mr Tinney’s decision to redraft to refer to a workshop to ‘determine next steps’

can be explained by a desire to reassure management that the Workshop was

able to generate a positive action plan for improving BWA culture.

27. The Authority considers that the amendments that Mr Tinney made to the September

Note, as described in paragraph 4.12 of this Notice, were misleading. The Report was

plainly a document which could fit the description in the Anonymous Email of a

‘Wealth cultural audit report’, so it should have been evident to Mr Tinney that the

September Note would be incomplete unless it disclosed the Report’s existence.

However, the Authority notes the reasoning that Mr Tinney has given for the

comments that he made and, as is explained in paragraph 5.7 of the Notice, in all of

the circumstances has concluded that the amendments that Mr Tinney made to the

September Note were misleading and made recklessly.

No-one was misled by Mr Tinney’s drafting

28. The Authority has not identified who was misled by Mr Tinney’s drafting, and has not

adduced any evidence showing such person(s) actually being misled. The case based

on ‘misleading statements’ therefore cannot succeed.

29. It is not necessary for the Authority to conclude that Mr Tinney’s drafting actually

misled anyone in order to conclude that Mr Tinney made statements and omissions

that were misleading and that he did so recklessly, in circumstances where he should

have known that this was likely to have misled others about issues of serious

regulatory concern.

Mr Tinney referred the Anonymous Email for an independent internal investigation

30. Mr Tinney, along with the Chief Executive of Wealth, was instrumental in referring the

Anonymous Email for an independent internal investigation. It is implausible to

suggest that Mr Tinney sought to draft a misleading response to a whistleblowing

email that he knew to be under independent investigation, especially as Mr Tinney

later confirmed to the Consultancy that the Report should be provided to the person

leading that investigation.

31. The Authority considers the evidence to be unclear as to Mr Tinney’s role in referring

the Anonymous Email to an independent internal investigator and what that

investigator’s role was. In any event, the Authority considers that the evidence

supports its conclusion that Mr Tinney recklessly made misleading statements and

omissions regarding the nature and existence of the Report, and considers that the

38

referral of the Anonymous Email for an independent internal investigation does not

affect the validity of this finding.

The New York Fed’s request

The New York Fed was not requesting the Report

32. The request from the New York Fed stemmed from meetings between the Chief

Executive of Wealth and the New York Fed at which the Chief Executive appears to

have informed the New York Fed that he had commissioned a ‘culture audit’ and that

he would provide this to the New York Fed. The notes of these meetings make it

clear that he was not referring to the Report. The Authority’s case therefore appears

to be that Mr Tinney (wrongly) believed the New York Fed was or might have been

requesting the Report, and he sought to conceal the Report from the New York Fed.

This is unsustainable.

33. Whether or not the New York Fed was specifically requesting the Report does not

affect the Authority’s conclusion that, in responding to the New York Fed’s request,

Mr Tinney recklessly made misleading statements and omissions as to the nature

and/or existence of the Report.

Mr Tinney reasonably did not believe the Report was being requested

34. Mr Tinney suggested that they could ‘create something if that would be helpful’

because it appeared that the New York Fed was looking for a composite of the work of

the Consultancy and the third party consultancy and he knew there was no such

composite.

35. The Authority considers that the Report was clearly a document which could be

considered a ‘culture audit’ (especially given that every page of the Report was

headed ‘Barclays Wealth America - Culture Audit’ and it began with the words ‘[We]

have been asked to conduct a culture audit into BWA…’). Mr Tinney also had good

reason to consider that the Report was likely, at least in part, to have satisfied the

New York Fed’s request, as his colleague identified the Report as being potentially

relevant to the request and Mr Tinney was told that the New York Fed was seeking a

‘“look back” type of review after the SEC exam, assessing: 1) why did the tone at the

top… not filter down to the bottom; and 2) what issues were there around escalation

going from the ground up’. The Authority therefore concludes that Mr Tinney closed

his mind to the possibility that the Report could help to satisfy the New York Fed’s

request and made misleading statements and omissions which he should have been

aware would make it less likely that the Global Head of Regulatory Relations or the

New York Fed would ask for a copy of the Report.

Mr Tinney volunteered the existence of the Report

36. The fact that Mr Tinney expressly referred to the Report in the 10 December 2012

meeting and said that a copy could be obtained is inconsistent with an attempt to

stop the Report surfacing.
Further, Mr Tinney also volunteered the existence of the

Report in a conversation with the Global Head of Regulatory Relations on 6 December

2012.

37. The Authority considers that Mr Tinney’s description of the Report in the 10

December 2012 meeting was misleading, and that Mr Tinney described the Report in

this way because he had closed his mind to the possibility that the Report could help

to satisfy the New York Fed’s request. The Authority considers that Mr Tinney should

have been aware that the way that he described the Report would make it less likely

that the Report would be disclosed.

38. The Authority considers it likely that Mr Tinney did have a conversation with the

Global Head of Regulatory Relations on 6 December 2012. However, the Authority

has not seen any evidence to support Mr Tinney’s assertion that he volunteered the

existence of the Report in that conversation. The Authority considers it more likely

that, if he did reference the work of the Consultancy, he would have described the

Report in a way which was consistent with his other descriptions of it. The Authority

therefore has not concluded from the evidence that the conversation would have led

the Global Head of Regulatory Relations to believe that the Report was what the New

York Fed was looking for.

Knowledge of the Chief Executive of Wealth

39. The Chief Executive of Wealth received Mr Tinney’s emails to the Global Head of

Regulatory Relations dated 6 December 2012 (see paragraph 4.18 of the Notice) and

was present at Mr Tinney’s meeting on 10 December 2012 with the Firm’s Global

Head of Regulatory Relations.
The Chief Executive knew of the existence and

contents of the Report and was best placed to make an assessment as to what was

meant by a ‘cultural audit’, but did not object to any of the statements made by Mr

Tinney or suggest that Mr Tinney was proceeding on the basis of a misapprehension

as to what the New York Fed appeared to be interested in receiving.

40. The most straightforward explanation is that both the Chief Executive of Wealth and

Mr Tinney believed in good faith that the Report was not the appropriate response to

the New York Fed’s request, with the former being in the best position to judge this

issue.

41. The Chief Executive of Wealth’s knowledge of the Report, and the fact that he did not

object to the statements made by Mr Tinney, does not affect the Authority’s

conclusion that Mr Tinney’s statements and omissions were misleading and made

recklessly.

Mr Tinnney’s statements were not misleading and no-one was misled by them

42. Mr Tinney’s statement, described in paragraph 4.16 of the Notice, that ‘the only

substantive input/output [of the Culture Audit] was from the [Workshop]’, cannot

have been intended to convey the impression that the Report did not exist. Mr

Tinney’s colleague had identified three potential documents: (i) the other third party

consultancy’s conclusions; (ii) the Consultancy’s conclusions; and (iii) the Workshop

materials, and Mr Tinney’s statement was in response to the question ‘What would

you like me to share?’ Mr Tinney’s response therefore did not imply that none of the

other documents mentioned by his colleague existed.

43. The statements made by Mr Tinney, described in paragraph 4.18 of the Notice, in

response to the Global Head of Regulatory Relations’ emails of 6 December 2012,

cannot plausibly have been intended to give the recipients the impression that the

Report did not exist because they were sent after Mr Tinney’s conversation with the

Global Head of Regulatory Relations on 6 December 2012, in which he had

volunteered the existence of the Report and the Global Head of Regulatory Relations

had opined that it did not seem to be what the New York Fed was looking for.

44. Mr Tinney’s descriptions of the Report at the 10 December 2012 meeting were not

misleading as they are consistent with how others, including the Consultancy, have

characterised the Report.

45. No-one was misled by Mr Tinney’s allegedly misleading statements, so a case based

on ‘misleading statements’ cannot succeed.

46. The Authority considers that the statements made by Mr Tinney were misleading for

the reasons given in paragraphs 5.10 and 5.11 of the Notice. The Authority considers

it is not necessary to find that anyone was actually misled in order to find that Mr

Tinney made misleading statements, and, in any case, Mr Tinney’s descriptions of the

Report at the 10 December 2012 meeting did mislead the Global Head of Regulatory

Relations, as it led her to the conclusion that the Report was not what the New York

Fed was looking for.

An independent investigator had a copy of the Report

47. It is implausible to suggest that Mr Tinney made misleading statements regarding the

nature of the Report at the 10 December 2012 meeting because, from at least 4

December 2012, Mr Tinney was aware that the individual leading the independent

investigation into the Anonymous Email had sought and obtained a copy of the

Report.

48. Mr Tinney met with the individual leading the independent investigation into the

Anonymous Email on 11 December 2012. At this meeting Mr Tinney described the

Report in terms which broadly tally with those he used at the 10 December 2012

meeting, yet at this point Mr Tinney knew that the lead investigator had obtained a

copy of the Report. This undermines the suggestion that Mr Tinney sought to make

misleading statements to the Global Head of Regulatory Relations at
the 10

December 2012 meeting.

49. The Authority considers that Mr Tinney recklessly made misleading statements to the

Global Head of Regulatory Relations at the 10 December 2012 meeting, despite

knowing by that date that another person in the Firm had obtained a copy of the

Report, because he had closed his mind to the obvious possibility that the Report

could, at least in part, have satisfied the New York Fed’s request.

Provision of misleading information to the ICAEW and the Authority

Provision of misleading information to the ICAEW

50. There is, and was, legitimate confusion about the extent of the ‘legal advice’ involved

in the decisions that were made about the dissemination of the Report. On at least

one view of events, Mr Tinney did, in effect, take legal advice regarding what should

be done with the Report because the Firm’s Global General Counsel was aware of the

Report and did not object to the decision that the Report should not be distributed.

Mr Tinney’s response to the ICAEW was therefore not misleading.

51. The allegation relates to a peripheral sentence in a letter drafted by Mr Tinney’s

solicitors. The worst that could be said of Mr Tinney is that he failed to spot an

inaccurate statement in lengthy correspondence drafted by someone else, and it is

unfair to find that he misled the ICAEW on that basis.

52. It is not appropriate for the Authority to make a public finding as to Mr Tinney’s

interactions with another regulator.

53. The Authority considers that Mr Tinney’s response to the ICAEW, through his

solicitors, did contain inaccurate and misleading statements, and has not seen any

evidence supporting the contention that they were simply overlooked by Mr Tinney.

The Authority does not accept that it should not have regard to evidence concerning

Mr Tinney’s interactions with another regulator in considering whether Mr Tinney is a

fit and proper person, particularly when that evidence relates to the same factual

circumstances as this Notice and is relevant to its decision as to whether Mr Tinney is

a fit and proper person.

Provision of misleading information to the Authority

54. In making the allegations that Mr Tinney provided misleading information to it, the

Authority does not make allowances for the potentially imperfect recall of an

extraordinarily busy executive several years after the events in question (which

formed but a small part of his workload during his employment at the Firm).

55. Mr Tinney denies the allegation at paragraph 4.23 of the Notice. The Authority’s

assessment of the other witness and documentary evidence is not balanced as to

whether Mr Tinney gave such an instruction. Mr Tinney clearly believed that he

would not be getting a document from the Consultancy, either because he had told

them this or because the previous working practice had been for such reports from

the Consultancy to be delivered orally to Mr Tinney. To the extent that anyone

provided instructions to produce a document, it is very likely to have been his Chief of

Staff. In addition, there is no evidence that Mr Tinney did instruct the Consultancy to

produce a written document.

56. Mr Tinney denies the allegation at paragraph 4.24
of the Notice. Whilst the

Consultancy may have understood such an instruction, the Authority’s assessment is

not balanced as to whether Mr Tinney and the Consultancy had become confused in

their dealings with each other through the intermediary role played by Mr Tinney’s

Chief of Staff.

57. Mr Tinney denies the allegation at paragraph 4.25 of the Notice. The Consultancy’s

evidence is actually that Mr Tinney never said ‘don’t mention the report’ and that, in

October 2012, Mr Tinney told the Consultancy that the Report should be given to

anyone who asked for it “on the record”.

58. Mr Tinney denies the allegation at paragraph 4.26 of the Notice. A fair assessment of

the evidence does demonstrate that Mr Tinney expressly raised the Report at the 10

December 2012 meeting, but was told by the Global Head of Regulatory Relations

that she did not think it was what the New York Fed was looking for. In addition, it

does not take into account the Chief Executive of Wealth’s central participation in the

meeting, including his own knowledge of the Report and its substantive content.

59. The Authority has had regard to Mr Tinney’s explanations but considers that the

evidence supports its conclusion that the statements described in paragraphs 4.23 to

4.26 of this Notice were misleading. The Authority considers that Mr Tinney made

these statements in order to avoid criticism of his conduct, and that in doing so he

was reckless as to the accuracy of the answers he gave to the Authority’s questions.

Disproportionality of action

60. Mr Tinney had not seen the Report for many months by the time of the relevant

events, and during those months Mr Tinney had a very busy work schedule and his

attention was focused on thousands of other documents and issues. He therefore

should not be blamed if there were shortcomings in his description of the Report.

61. Even if the Authority considers that there were shortcomings in Mr Tinney’s

descriptions of the Report and/or that he ought to have proactively taken steps to

bring the Report to the attention of the Firm’s executive management and the New

York Fed, this would not be a proper basis for a finding of a lack of integrity or a

prohibition order in circumstances where:

a.
Mr Tinney had conscientiously driven attempts to improve and reform the

culture at Wealth and BWA;

b.
there is no suggestion of any personal benefit to Mr Tinney arising out of the

alleged wrongdoing;

c.
other senior employees of the Firm must also have been culpable for any

shortcomings, and

d.
this is the first time that regulatory charges have been made against Mr

Tinney in a previously unblemished career.

62. A fair evaluation of the evidence and relevant context leads to the conclusion that Mr

Tinney’s actions were well within the range of actions of a person acting in good faith.

63. The Authority does not consider it needs to reach a view on whether other employees

of the Firm were also culpable in order to conclude that it is appropriate to take the

action set out in this Notice. The Authority has taken the other circumstances

mentioned above into account in determining that the appropriate sanction is a public

censure rather than a financial penalty. However, the Authority remains of the view

that it is appropriate, in order to support the Authority’s regulatory objectives of

protecting and enhancing the integrity of the UK financial system and securing an

appropriate degree of protection for
consumers, to prohibit Mr Tinney from

performing any significant management function and any significant influence

function on account of his reckless conduct in his contributions to the drafting of the

September Note and the Firm’s response to the New York Fed’s request.