R v Rollins

A person, including a body corporate or public authority, may institute a private prosecution unless legislation restricts that right and, for a corporation, its constitution permits the prosecution.

Sections 401 and 402 of the Financial Services and Markets Act 2000 do not exhaustively define the Financial Services Authority’s prosecutorial powers. Section 401 restricts who may prosecute offences under that Act. Section 402 enables specified prosecutions without otherwise required consent and subjects them to Treasury conditions or restrictions.

The Authority therefore retains its general power to prosecute financial offences outside those sections. A mismatch between its statutory investigative powers and its prosecutorial power does not alter that conclusion.

The appellant faced charges of insider dealing under section 52 of the Criminal Justice Act 1993 and money laundering under sections 327 and 328 of the Proceeds of Crime Act 2002. He accepted that the Financial Services Authority could prosecute the insider-dealing offences but challenged its power to prosecute the money-laundering offences.

The Court of Appeal, in [2009] EWCA Crim 1941, held that the Authority’s prosecutorial powers were not confined to the offences identified in sections 401 and 402 of the Financial Services and Markets Act 2000.

The central issue before the Supreme Court was whether those provisions formed a complete code which displaced the Authority’s pre-existing general right to institute criminal proceedings.

1. The appeal was dismissed. The Financial Services Authority had power to prosecute money-laundering offences under sections 327 and 328 of the Proceeds of Crime Act 2002. Sir John Dyson SCJ delivered the judgment of the Court.

2. Every person has a general right to institute a private prosecution, subject to statutory restrictions. Section 6 of the Prosecution of Offences Act 1985 preserved that right. A body corporate is a person for this purpose and may prosecute where its constitutional instrument permits it. Before the enactment of the Financial Services and Markets Act 2000, the Authority could therefore prosecute any offence within its corporate objects unless the legislation creating the offence imposed a restriction or condition.

3. Section 401 of the 2000 Act does not confer an exhaustive prosecutorial power. It limits the persons who may prosecute offences under that Act or subordinate legislation made under it. Parliament ordinarily restricts prosecutorial standing by express language, as it did in section 401(2). No equivalent provision excludes the Authority from prosecuting offences outside sections 401 and 402.

4. Section 402 also does not define exhaustively the other offences which the Authority may prosecute. Its paragraphs have specific functions. In relation to insider dealing, section 402(1)(a) dispenses with the consent otherwise required by section 61(2) of the Criminal Justice Act 1993. The remaining paragraphs ensure the Authority may prosecute the specified money-laundering and counter-terrorism offences and that such prosecutions remain subject to written Treasury conditions or restrictions.

5. The wider statutory context confirmed that sections 401 and 402 were not a complete code. The Authority’s regulatory objectives included reducing financial crime. Other enactments separately conferred prosecutorial functions on it without treating those powers as derived from the 2000 Act. Parliament was unlikely to have intended an inefficient regime under which the Authority could prosecute specified financial offences but could not add or pursue closely related offences revealed by the same evidence.

6. The absence of matching statutory investigative powers for offences under the 2002 Act was immaterial. A private prosecutor’s right to prosecute does not depend upon possession of corresponding investigative powers. The Explanatory Notes could indicate the Treasury’s understanding, but could not determine Parliament’s intention.

1. United Kingdom Supreme Court: Dismissed the appeal and held that the Financial Services Authority could prosecute the money-laundering offences.
2. Court of Appeal (Criminal Division): In [2009] EWCA Crim 1941, held that the Authority’s prosecutorial powers were not confined to the offences specified in sections 401 and 402 of the Financial Services and Markets Act 2000.