Rollins, R. v

A statutory conferral of functions on an existing corporate regulator does not, without clear express language, remove its general capacity to bring a private prosecution. Sections 401 and 402 of the Financial Services and Markets Act 2000 identify offences which the Financial Services Authority may prosecute without the Director of Public Prosecutions’ consent. They do not create an exhaustive code of its prosecutorial powers.

The Authority may therefore prosecute money-laundering offences under Proceeds of Crime Act 2002 ss 327 and 328 where its corporate powers permit it. Its lack of corresponding statutory investigatory powers does not prevent a private prosecution. A restraint order is not discharged for non-disclosure unless the omitted matter was material and the public interest, assessed with the true position known, justifies discharge.

The appellants faced Financial Services Authority prosecutions for financial-services offences and for money laundering contrary to Proceeds of Crime Act 2002 ss 327 and 328.

Neil Rollins appealed, with leave, from a preparatory-hearing ruling of HHJ Wadsworth QC at Southwark Crown Court that the Authority could prosecute the money-laundering counts. Michael McInerney sought leave to appeal from HHJ Goymer’s refusal to discharge a restraint order. He raised the same jurisdictional objection and alleged material non-disclosure.

The common issue was whether the Authority’s express prosecutorial powers under the Financial Services and Markets Act 2000 excluded its ability, as a corporate private prosecutor, to bring proceedings for offences under the Proceeds of Crime Act 2002.

1. Both substantive appeals were dismissed. The Financial Services Authority was an existing company limited by guarantee, not a statutory corporation created by the Financial Services and Markets Act 2000. Section 1(1) conferred functions on it but did not state that its functions were limited to those conferred by that Act. Clear and express language would have been required to remove wider powers. Neither section 1 nor Schedule 1 contained such language.

2. Sections 401 and 402 did not constitute an exhaustive regime. Their essential effect was to restrict who might prosecute the specified offences and to enable the Authority to prosecute them without the Director of Public Prosecutions’ consent. They did not imply that the Authority lacked power to prosecute other offences. The court agreed with the construction of section 402 in R (Uberoi) v City of Westminster Magistrates’ Court and Others [2008] EWHC 3191 (Admin).

3. The right of private prosecution preserved by section 6 of the Prosecution of Offences Act 1985 was available to corporate bodies. Nothing in the 2000 Act excluded the Authority from that right, and its memorandum of association was wide enough to authorise criminal proceedings within its objects. It could therefore prosecute offences under Proceeds of Crime Act 2002 ss 327 and 328. The absence of statutory investigatory powers for those offences was immaterial, including where the offences came to light during a lawful statutory investigation.

4. On McInerney’s additional ground, non-disclosure on a without-notice restraint-order application must be material: it must be capable of affecting the judge’s decision. Even material non-disclosure does not automatically require discharge; the court must consider the public interest with the true position known. The Authority’s failure to state that it acted as a private prosecutor was immaterial, and the financial-services counts independently supported the order.

5. The court granted McInerney leave to appeal but dismissed his appeal. It also disapplied the reporting restriction under section 37(1) of the Criminal Procedure and Investigations Act 1996, holding that a full and fair report could not prejudice either trial.

• Court of Appeal (Criminal Division): dismissed Rollins’s appeal from the preparatory-hearing ruling and, after granting McInerney leave, dismissed his appeal from the refusal to discharge the restraint order.
• Southwark Crown Court: HHJ Wadsworth QC ruled at a preparatory hearing that the Financial Services Authority could prosecute the money-laundering offences. HHJ Goymer refused McInerney’s application to discharge a restraint order.