Uberoi & Anor, R (on the application of) v City of Westminster Magistrates' Court & Ors

Section 402 of the Financial Services and Markets Act 2000 empowered the Financial Services Authority to institute proceedings for insider-dealing offences under Part V of the Criminal Justice Act 1993 without first obtaining consent under section 61(2) of the 1993 Act.

The issue could not be resolved by reading section 402 narrowly or in isolation. The court had to consider the structure, content and apparent purpose of the 2000 Act as a whole. That statutory context showed that Parliament intended the FSA to have prosecutorial powers equivalent to those expressly provided for offences under the 2000 Act.

The claimants faced 17 insider-dealing charges under section 52(1) of the Criminal Justice Act 1993. The Financial Services Authority had laid informations and obtained summonses without securing the consent of the Secretary of State or the Director of Public Prosecutions required by section 61(2) of that Act.

The City of Westminster Magistrates' Court ruled that the FSA could institute the proceedings without that consent. The claimants sought judicial review of that ruling. The central question was whether section 402 of the Financial Services and Markets Act 2000 modified the consent requirement in section 61(2).

1. Application dismissed. The summonses were not rendered a nullity by the absence of consent under section 61(2) of the Criminal Justice Act 1993.
2. Proceedings are instituted when an information is laid and a summons is issued. The court accepted the principles stated in Price v Humphries and R v Bull. It was also common ground that proceedings instituted without a consent required by section 61(2) would be a nullity, with any conviction liable to be quashed, consistently with R v Pearce.
3. The literal meaning of section 402, considered alone, did not necessarily remove the consent requirement. Section 61(2) distinguished between instituting proceedings and obtaining consent to institute them.
4. That narrow construction was displaced by the wider statutory context. Section 401 expressly enabled the FSA to institute proceedings for offences under the 2000 Act without consent. Section 402 appeared in the same Part, imposed materially identical Treasury conditions, and addressed insider dealing, which formed part of the FSA's regulatory responsibilities alongside market-abuse and related offences.
5. Reading the 2000 Act as a whole, retaining the consent requirement for insider-dealing proceedings would create anomalies and inconsistencies. The words “may institute” in section 402(1) were therefore to be read as having the same effect as “may be instituted by” in section 401(2). The FSA could institute proceedings under section 402 on its own initiative and without prior consent.
6. The court treated statutory intention as an objective meaning derived from the language used in context, adopting the approach explained in Queen v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd and referring to Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG.

The judgment describes a ruling made on 19 September 2008 by District Judge Purdy in the City of Westminster Magistrates' Court. The present court dismissed the judicial-review claim and upheld the conclusion that the FSA could institute the proceedings without prior consent.