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05 Nov 2009

Implications of a recent Court of Appeal decision

In an article published in The Times, Robert Brown , partner, Corker Binning, comments on the worrying implications of a recent Court of Appeal decision to allow statutory bodies to prosecute beyond their powers.

Should the Financial Services Authority be a private individual?

By Robert Brown

A jury at Southwark Crown Court yesterday convicted Neel and Matthew Uberoi, a dentist and his son, of offences of insider dealing. The case was been brought by the Financial Services Authority. The case is one of a number that raise important questions about how many prosecution agencies we should have and to what extent the powers of such prosecutors should be limited or regulated.

Most people know that the Crown Prosecution Service (CPS) is responsible for prosecuting all criminal cases in England and Wales. But that is not the whole picture. Other statutory agencies have the power to prosecute and private individuals can also bring private prosecutions in a criminal court. Until the mid-1980s the police were responsible for both the initial investigation and the subsequent prosecution of a case at court. Concerns about their lack of independence and objectivity were factors that led to the creation of the CPS in 1985.

The statutory body is staffed by civil servants — qualified lawyers — who make decisions on whether prosecutions should be brought as a result of a police investigation. The significance of this hierarchy is the separation of power and responsibility between the two. Equally important for public confidence is the Code for Crown Prosecutors, which requires that a prosecution will start only if specified objective criteria are met. These are detailed and designed to ensure that a case is not brought unless there is sufficient evidence and that it is in the public interest that the suspect be prosecuted for a criminal offence.

The other statutory bodies that have the powers to prosecute, such as the FSA, the Department for Work and Pensions and the Health and Safety Executive, would normally apply the CPS code before deciding to act. But recent developments suggest that they may be able to prosecute for offences far beyond those that obviously fall within their area of special interest.

This proposition has arisen from the recent decision of the Court of Appeal that ruled on two cases (for the appeal the cases were conjoined as Rollins and McInerney) brought by the FSA. One case concerned an allegation of insider dealing and the other was a prosecution for involvement in a boiler room fraud (where investors are pressurised into buying worthless shares). Parliament had given the FSA specific authority to prosecute these types of offence because they clearly fall within the remit of the financial regulator. But in these cases the FSA went farther and included charges of money laundering even though Parliament did not give it that power.

In what is likely to prove a ground-breaking judgment, the Court of Appeal ruled that it made good sense for the FSA to be able to prosecute for money laundering because there would otherwise have to be a separate trial brought by a different agency for these offences. It also made sense because money-laundering offences can be seen as similar in nature to other white-collar crimes. The Court of Appeal said that in these cases the FSA could prosecute in its capacity as a private individual. The surprise in this was not just that the FSA suddenly acquired (via the common law) powers to prosecute that had not been granted to it by Parliament, but the very concept that a regulatory body with enormous resources could ever be characterised as a “private individual”. For the Court of Appeal the pragmatic ends seem to have justified the means.

This decision was made against the backdrop of an increasingly hot debate concerning the future of a number of prosecution agencies. It has already been decided by Government that the Revenue and Customs Prosecutions Office will be merged with the CPS. Some commentators have campaigned for the Serious Fraud Office to be abolished or at least merged with one or more of the existing agencies. After last year’s economic crash the Tories indicated their intention to abolish the FSA if elected.

What is most curious about the appeal court decision is that it failed to define the limitations of the power of the FSA to prosecute for potentially any offence in its capacity as a private individual. Just as we have recently seen a surge in the number of FSA prosecutions we may now see it and other statutory bodies flexing their muscles by bringing private prosecutions in cases in which until recently no one believed they had any power.

Whatever happens, private prosecutors are not bound by any code of practice. Indeed, one reason for the creation of the CPS was to enable the Crown to take over and halt unmeritorious private prosecutions. The Court of Appeal decision now means that these bodies are able to instigate and prosecute a wider range of offences than those allowed by Parliament, but without the safeguards designed by those who designed the CPS 25 ago.

The author is a partner at Corker Binning

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