The Court of Appeal has handed down an important decision concerning the powers of the Financial Services Authority. In Rollins, R. v [2009] EWCA Crim 1941, it was argued that the FSA's power to prosecute criminal offences was limited to the offences referred to in Sections 401 and 402 of the Financial Services and Markets Act (2000) and that the FSA could not, therefore, prosecute offences of money laundering contrary to Sections 327 and 328 of the Proceeds of Crime Act (2002). The court rejected this argument and held that the FSA enjoyed the right of private prosecution. Richards LJ (delivering the opinion of the court) observed (at paras. [30] and [32]):
... we can see no reason why the general right of private prosecution should not be enjoyed by the FSA. The right is not excluded by FSMA 2000 or any other statutory provision to which our attention has been drawn, and the powers conferred on the FSA by its Memorandum of Association are easily wide enough to cover the institution of criminal proceedings within the scope of its objects.
The right of private prosecution does not depend upon the enjoyment of corresponding powers of investigation, and it will frequently be the case that a private prosecutor lacks relevant statutory powers of investigation. The fact that the FSA does not claim to enjoy statutory powers of investigation in relation to the offences under POCA 2002 therefore tells one nothing about its power to prosecute those offences. If offences under POCA 2002 come to its attention in the course of investigations carried out in the exercise of the powers that it does enjoy under section 168 of FSMA 2000, then in our judgment it can prosecute those offences notwithstanding that they fall outside the scope of the statutory powers of investigation".
Update (14 October 2009): the decision has been reported here by the ICLR as part of its WLR Daily service (this summary will be removed should the ICLR report the decision in one of its series of law reports).
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