The power of the Financial Services Authority to institute criminal proceedings was not limited to the offences referred to in ss 401 and 402 of the Financial Services and Markets Act 2000; in particular the FSA had power to prosecute offences of money laundering under ss 327 and 328 of the Proceeds of Crime Act 2002.

The Supreme Court so held when dismissing an appeal by Neil Rollins, who had been charged with insider dealing under s 52 of the Criminal Justice Act 1993 and money laundering under ss 327 and 328 of the 2002 Act, from the Court of Appeal (Richards LJ, Irwin J and Judge Baker QC) [2010] Bus LR 734, which confirmed the ruling of Judge Wadsworth QC, given at a preparatory hearing at Southwark Crown Court, that the Financial Services Authority (the “FSA”) could prosecute money laundering offences under the 2002 Act.

SIR JOHN DYSON JSC, giving the judgment of the court, rejected the defendant’s central submission that ss 1(1), 401 and 402 of the 2000 Act provided a complete code within which the FSA had to operate and that its only prosecutorial powers, derived from ss 401 and 402, did not include offences under the 2002 Act. Before enactment of the 2000 Act the FSA had the power of a private prosecutor to initiate criminal proceedings for any offence, subject to statutory restrictions and conditions, provided it was permitted by its memorandum and articles of association. The FSA could then have prosecuted offences under ss 327 and 328 of the 2002 Act, had that Act then been in force. There was no indication that Parliament, in enacting the 2000 Act, intended to restrict the FSA’s powers. S 401 dealt with the prosecution of offences under the 2000 Act and subordinate legislation made under it; s 401(2) provided that proceedings for such an offence might be instituted only by the Secretary of State or by or with consent of the Director of Public Prosecutions. The purpose of the provision was not to confer the power to prosecute, but to limit the persons who might prosecute for such offences. Nor, on its proper construction, did s 402 define exhaustively the other offences which the FSA might prosecute. The purpose of s 1(1) was to make clear at the outset that it was the FSA, rather than any other body, which was to have the functions conferred on it by the 2000 Act. The section neither stated nor implied that the FSA was to have only those functions. Unquestionably it had other functions as well. Accordingly the FSA had power to prosecute offences of money laundering under ss 327 and 328 of the 2002 Act.