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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rollins, R. v [2009] EWCA Crim 1941 (09 October 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1941.html Cite as: [2010] 1 Cr App R 14, [2010] 1 Cr App Rep 14, [2010] Bus LR 734, [2010] Crim LR 772, [2010] Lloyd's Rep FC 16, [2010] 1 All ER 1183, [2009] EWCA Crim 1941 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(HHJ Wadsworth QC and HHJ Goymer)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE IRWIN
and
HIS HONOUR JUDGE BAKER QC
____________________
Regina |
Respondent |
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- and - |
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Neil Rollins |
Appellant |
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And between: |
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Regina |
Respondent |
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- and - |
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Michael McInerney |
Appellant |
____________________
David Perry QC and Samuel Grodzinski (instructed by the Solicitor to the Financial Services Authority) for the Respondent
Neil Hawes (instructed by Irwin Mitchell LLP) for the Appellant McInerney
David Perry QC and Simon Gerrish (instructed by the Solicitor to the Financial Services Authority) for the Respondent
Hearing date : 21 July 2009
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Crown Copyright ©
Lord Justice Richards :
The FSA
"With respect to the foregoing objects the powers of the Company shall include (but not be limited to) powers to do any of the following where the directors of the Company consider the same to be incidental or conducive to the objects of the Company:
…
(vi) to institute legal or arbitration proceedings or itself to establish and operate procedures for the settlement of disputes."
"The Authority's objects are:
(A) to carry out any functions conferred on the Authority by or under any provision of any legislation, as amended from time to time, and to carry out such other functions or exercise such powers as, from time to time, may be carried out or exercisable by the Authority.
(B) to carry out any other function or exercise any other power as may, in the Authority's view, assist or enable it to carry out the functions and powers referred to above or which the Authority considers incidental, desirable or expedient."
The relevant provisions of the FSMA 2000
"1. The Financial Services Authority
(1) The body corporate known as the Financial Services Authority ('the Authority') is to have the functions conferred on it by or under this Act.
(2) The Authority must comply with the requirements as to its constitution set out in Schedule 1.
(3) Schedule 1 also makes provision about the status of the Authority and the exercise of certain of its functions.
(4) Section 249 of the Banking Act 2009 provides for references to functions of the Authority (whether generally or under this Act) to include references to functions conferred on the Authority by that Act (subject to any order under that section)."
"401. Proceedings for offences
(1) In this section 'offence' means an offence under this Act or subordinate legislation made under this Act.
(2) Proceedings for an offence may be instituted in England and Wales only –
(a) by the Authority or the Secretary of State; or
(b) by or with the consent of the Director of Public Prosecutions.
(3) Proceedings for an offence may be instituted in Northern Ireland only –
(a) by the Authority or the Secretary of State; or
(b) by or with the consent of the Director of Public Prosecutions for Northern Ireland.
(4) Except in Scotland, proceedings for an offence under section 203 may also be instituted by the Office of Fair Trading.
(5) In exercising its power to institute proceedings for an offence, the Authority must comply with any conditions or restrictions imposed in writing by the Treasury ….
402. Power of the Authority to institute proceedings for certain other offences
(1) Except in Scotland, the Authority 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 Authority must comply with any conditions or restrictions imposed in writing by the Treasury …."
"In my judgment the structure and content of the 2000 Act amply demonstrate that it must have been the Parliamentary intention that the FSA would be able to institute proceedings under Part V of the 1993 Act without consent from outside. In the light of section 61(2) of the 1993 Act, and not overlooking paragraph 4 of Schedule 1 to the 1987 Act and the absence of such provision in the 2000 Act, section 402(1) is not tightly drawn. But the implication is to my mind abundantly plain. It is achieved by reading the words 'may institute' in section 402(1) as having the same meaning and effect as the same words in the passive voice 'may be instituted by' in section 401(2), so that the FSA may institute proceedings under section 402(1) on their own initiative and without the antecedent need to obtain the consent of the Secretary of State or the DPP. If a narrow argument of literal construction might not lead to that result, in my judgment the narrow argument is overwhelmed by the obvious general Parliamentary intention and the specific intention to be derived from those two sections."
The power of the FSA to prosecute offences under POCA 2002
"6.(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage."
"Great importance has always been attached to the ability of an ordinary member of the public to prosecute in respect of breaches of the criminal law. If an ordinary member of the public can bring proceedings for breaches of the criminal law, it would be surprising if the Inland Revenue were not in a similar position."
See also R (Securiplan PLC and Others) v Security Industry Authority [2008] EWHC 1762 (Admin), at paragraph [33], where Blake J observed:
"It is hardly remarkable that Parliament should not have given the regulator overt powers of prosecution when a prosecution can be brought by the ordinary citizen in the public as well as the private interest (see R (Ewing) v Davis …). In my judgment, the powers available to the private citizen also undermine the contention that in the modern era only the CPS or regulators that are independent of the investigative processes can institute proceedings …."
The Rollins appeal
The McInerney appeal
"Plainly, in order to provide any ground for discharging the initial order which has been obtained without notice to the suspect, any non-disclosure must be material, that is to say it must be of something which would have affected the judge's decision on the application. If there has been a material failure of disclosure, that may justify discharging the order, but it need not do so. The proper approach is to consider whether the public interest does or does not call for the order to stand, now that the true position is known, and taking into account the previous failure of disclosure. Whether the non-disclosure was deliberate or accidental will be a material factor, although not necessarily determinative …."
Reporting restriction