EG 12.1 1The FCA’s general approach

1The FCA has powers under sections 401 and 402 of the Act to prosecute a range of criminal offences in England, Wales and Northern Ireland. The FCA may also prosecute criminal offences where to do so would be consistent with meeting any of its statutory objectives.

1The FCA's general policy is to pursue through the criminal justice system all those cases where criminal prosecution is appropriate. When it decides whether to bring criminal proceedings in England, Wales or Northern Ireland, or to refer the matter to another prosecuting authority in England, Wales or Northern Ireland (see paragraph 12.4.1), it will apply the basic principles set out in the Code for Crown Prosecutors.¹⁴ When considering whether to prosecute a breach of the Money Laundering Regulations, the FCA will also have regard to whether the person concerned has followed the Guidance for the UK financial sector issued by the Joint Money Laundering Steering Group.

¹⁴ http://www.cps.gov.uk/publications/code_for_crown_prosecutors/

1The FCA's approach when deciding whether to commence criminal proceedings for misleading statements and practices offences and insider dealing offences, where the FCA also has power to impose a sanction for market abuse, is discussed further in paragraphs 12.3.1 to 12.3.4.

1In cases where criminal proceedings have commenced or will be commenced, the FCA may consider whether also to take civil or regulatory action (for example where this is appropriate for the protection of consumers) and how such action should be pursued. That action might include: applying to court for an injunction; applying to court for a restitution order; variation and/or cancellation of permission; and prohibition of individuals. The factors the FCA may take into account when deciding whether to take such action, where criminal proceedings are in contemplation, include, but are not limited to the following:

1. (1)

   whether, in the FCA's opinion, the taking of civil or regulatory action might unfairly prejudice the prosecution, or proposed prosecution, of criminal offences;

2. (2)

   whether, in the FCA's opinion, the taking of civil or regulatory action might unfairly prejudice the defendants in the criminal proceedings in the conduct of their defence; and

3. (3)

   whether it is appropriate to take civil or regulatory action, having regard to the scope of the criminal proceedings and the powers available to the criminal courts.

1Subject to 12.4C, a decision to commence criminal proceedings will be made by

the RDC Chairman or, in an urgent case and if the Chairman is not available, by an RDC Deputy Chairman. In an exceptionally urgent case the matter will be decided by the director of Enforcement or, in his or her absence, another member of the FCA's executive of at least director of division level.

1An exceptionally urgent case in these circumstances is one where the FCA staff believe that a decision to begin proceedings

1. (1)

   should be taken before it is possible to follow the procedure described in paragraph 12.1.5; and

2. (2)

   it is necessary to protect the interests of consumers or potential consumers.

1Decisions about whether to initiate criminal proceedings under the Building Societies Act 1986, the Friendly Societies Acts 1974 and 1992, the Credit Unions Act 1979, the Industrial and Provident Societies Act 1965 and the Friendly and Industrial and Provident Societies Act 1968 may either be taken by the procedure described in paragraph 12.1.5 above or under executive procedures. The less serious the offence or its impact and the less complex the issues raised, the more likely that the FCA will take the decision to prosecute under executive procedures.