(1)Except in Scotland, the FCA may institute proceedings for an offence under—
(a)Part V of the Criminal Justice Act 1993 (insider dealing); . . .
(b)prescribed regulations relating to money laundering. or
(c)Schedule 7 to the Counter-Terrorism Act 2008 (terrorist financing or money laundering).
(2)In exercising its power to institute proceedings for any such offence, the FCA must comply with any conditions or restrictions imposed in writing by the Treasury.
(3)Conditions or restrictions may be imposed under subsection (2) in relation to—
(a)proceedings generally; or
(b)such proceedings, or categories of proceedings, as the Treasury may direct.
Cases considering section 402 (6)
[2010] UKSC 39 · 28 July 2010Disapplies
The section identifies particular additional offences which the Authority may prosecute and subjects those prosecutions to Treasury controls. It does not exhaustively define the Authority’s prosecutorial powers. (see paras [19]–[24]; [26])
The subsection does not exclude the Authority’s general power to prosecute other offences. Its paragraphs address particular consent requirements, future prescribed regulations and Treasury supervision. (see paras [16]–[24])
The paragraph permits the Authority to prosecute insider dealing without the consent otherwise required by section 61(2) of the Criminal Justice Act 1993. (see para [21])
The paragraph ensures that the Authority can prosecute offences under present or future prescribed money-laundering regulations and that those prosecutions are subject to Treasury conditions and restrictions. (see para [22])
The paragraph confirms the Authority’s power to prosecute offences under Schedule 7 to the Counter-Terrorism Act 2008 and subjects that power to Treasury conditions and restrictions. (see para [23])
The subsection requires the Authority to comply with written Treasury conditions or restrictions when prosecuting offences identified in section 402(1). (see paras [21]–[23])
The subsection permits Treasury conditions or restrictions to apply generally or to particular proceedings or categories of proceedings under section 402. (see para [6])
[2009] EWCA Crim 1941 · 9 October 2009Interprets
The provision enables the Authority to prosecute the specified external offences without the Director of Public Prosecutions’ consent. It does not create an exhaustive list of offences which it may prosecute. (see paras [22]-[25])
The subsection has the same effect as section 401 in relation to the listed external offences: it authorises prosecution without consent and does not negate independent private-prosecution powers. (see para [24])
The court agreed that the provision allows the Authority to prosecute insider-dealing offences under Part V of the Criminal Justice Act 1993 without external consent. (see para [24])
The provision is construed consistently with section 402(1)(a): it gives the Authority power to prosecute prescribed money-laundering regulations without consent, but does not preclude wider powers. (see para [24])
The provision is construed consistently with the other limbs of section 402(1). Its overlap with the prosecutorial list in Schedule 7 to the Counter-Terrorism Act 2008 does not alter that interpretation. (see para [24])
[2008] EWHC 3191 (Admin) · 2 December 2008Interprets
The court interpreted section 402(1) as empowering the FSA to institute Part V insider-dealing proceedings on its own initiative and without prior consent under section 61(2) of the 1993 Act. (see paras [1]; [14]; [25]-[29])
The court held that section 402(1)(a) gave the FSA power to institute proceedings for offences under Part V of the 1993 Act without antecedent consent. (see paras [7]; [25]-[29])
The court relied on the replication of Treasury conditions in section 402(2) as evidence that section 402 created a substantive prosecutorial power rather than a merely technical power. (see paras [7]; [25])
The court relied on the replication of Treasury conditions in section 402(3) as evidence that section 402 created a substantive prosecutorial power rather than a merely technical power. (see paras [7]; [25])
What each judgment says about section 402 is in the case-law panel in the full Act.
712.This section allows the Authority to prosecute in England, Wales or Northern Ireland two criminal offences which are not in this Act. These are the offences of insider dealing (Part V of the Criminal Justice Act 1993) and breach of the Money Laundering Regulations 1993 (regulation 5).
713.Subsections (2) and (3) give the Treasury the power to set conditions relating to the way in which the Authority can bring proceedings for these offences. For example, the Treasury could require the Authority to comply with the Code for Crown Prosecutors.