R v Rollins

The Supreme Court held that the Financial Services Authority (FSA) has power to prosecute offences of money laundering contrary to sections 327 and 328 of the Proceeds of Crime Act 2002. The Court rejected the appellant's submission that the FSA's prosecutorial powers were limited to offences referred to in sections 401 and 402 of the Financial Services and Markets Act 2000 (FSMA). The decision rested on the preserved right of private prosecution, the statutory language and structure of FSMA, the regulatory duties in section 2 of FSMA (including the reduction of financial crime), and the practical absurdities that would follow from a restrictive construction of FSMA.

The Court explained the proper roles of sections 401 and 402: section 401 limits who may prosecute offences under FSMA itself; section 402(1)(a) dispenses with the consent requirement in relation to insider dealing and section 402(1)(b) and (c) secure Treasury conditions in relation to prescribed money‑laundering regulations and Schedule 7 offences. The Court further relied on examples where other statutes have expressly conferred powers on the FSA, showing that sections 401 and 402 do not form an exhaustive code.

Background and parties: The appellant, Mr Rollins, 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). The Financial Services Authority prosecuted. The appellant challenged the FSA's power to prosecute the money laundering counts, arguing that FSMA limited the FSA to prosecuting only the offences mentioned in sections 401 and 402. The matter reached the Supreme Court on appeal from the Court of Appeal ([2009] EWCA Crim 1941).

Nature of the appeal and issues: The appeal raised a question of statutory interpretation: whether sections 1(1), 401 and 402 of FSMA constituted a complete code restricting the FSA's power to institute criminal proceedings to the offences specified in those provisions, thereby excluding prosecution under POCA sections 327 and 328.

Procedural history: The Court of Appeal had held that the FSA's powers were not so limited. The case was brought to the Supreme Court for final determination.

• Issue framed: Does FSMA remove the pre‑existing ability of the FSA (as a corporate body) to bring private prosecutions for offences outside sections 401 and 402, specifically money laundering offences under POCA?
• Relief sought: The appellant sought a declaration that the FSA lacked power to prosecute the POCA counts, or, effectively, dismissal of those counts as improperly brought.

Court's reasoning: The Court emphasised the general right of any person, including a corporation, to bring private prosecutions subject to statutory restrictions (citing authorities recognising private and public bodies bringing prosecutions). It held that section 401 operates to limit who may prosecute offences under FSMA itself but does not in terms or effect deprive the FSA of the broader private prosecutorial capacity it previously enjoyed. Section 402 was examined paragraph by paragraph: 402(1)(a) removes the consent requirement for insider dealing prosecutions; 402(1)(b) ensured that the FSA could prosecute under prescribed money‑laundering regulations and that such prosecutions would be subject to Treasury conditions; and 402(1)(c) performed a similar function in relation to Schedule 7 to the Counter‑Terrorism Act 2008. The Court rejected the 'complete code' argument on textual, purposive and practical grounds, noting perverse or inefficient consequences that would follow from the restrictive view and observing that other enactments had expressly conferred additional prosecutorial powers on the FSA.

Conclusion: The Supreme Court concluded that FSMA does not oust the FSA's ability to prosecute money laundering offences under POCA and therefore the FSA had power to prosecute the appellant for the POCA offences.

Appeal dismissed. The Supreme Court held that the FSA has the power to prosecute money laundering offences under sections 327 and 328 of the Proceeds of Crime Act 2002. The Court concluded that FSMA sections 1(1), 401 and 402 do not form an exhaustive code restricting the FSA's pre‑existing ability to bring prosecutions; sections 401 and 402 were construed according to their text, purpose and practical consequences, with section 402 securing particular procedural effects (eg dispensing with consent for insider dealing and subjecting prescribed regulations to Treasury conditions).

On appeal from the Court of Appeal (Criminal Division) [2009] EWCA Crim 1941. The Court of Appeal had held that the FSA had power to bring prosecutions beyond those specified in sections 401 and 402 of FSMA; the Supreme Court affirmed that conclusion and dismissed the appellant's challenge.