When the FSA 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 ENF 15.8.1 G), it will apply the basic principles set out in the Code for Crown Prosecutors. The November 20041 edition of the Code is set out in ENF 15 Annex 1 G.1
there is sufficient evidence to provide a realistic prospect of conviction against the defendant on each criminal charge ('the evidential test'); and
having regard to the seriousness of the offence and all the circumstances, criminal prosecution is in the public interest ('the public interest test').
The FSA will apply the evidential test in accordance with the guidance contained in the Code for Crown Prosecutors (see paragraphs 5.2 to 5.51 of ENF 15 Annex 1 G G). In particular, the FSA will commence proceedings only where it is satisfied that the evidence is such that a jury or a bench of magistrates (properly directed in accordance with the law) is more likely than not to convict the defendant of the charge alleged.1
In deciding whether there is enough evidence to prosecute, the FSA will consider whether the evidence can be used in criminal proceedings and is reliable. The FSA will not generally be able to use, or refer to, in criminal proceedings a statement made by the defendant in compliance with the FSA's compulsory powers of investigation. The FSA will only be able to use those statements where the alleged offence is either making false statements otherwise than on oath, or providing false or misleading evidence to the FSA's investigators (see section 177(4) of the Act (Offences)).
In each case where the evidential test is satisfied, the FSA will consider whether a prosecution would be in the public interest. This will depend on the circumstances of each individual case. The FSA will balance the factors for and against prosecution, and apply the guidelines set out in the Code for Crown Prosecutors. Only if the FSA determines that criminal prosecution is in the public interest (see paragraphs 5.6 to 5.131 of ENF 15 Annex 1 G G) will it proceed to prosecute.1