Criminal prosecution

• 1.

  Regulators have a common law power to prosecute criminal offences. ¹

• 2.

  In developing this policy we have taken account of the Better Regulation Principles and the Regulators' Compliance Code 2007.

• 3.

  We and our predecessors have prosecuted cases, principally under the Solicitors Act 1974, for many years.

• 4.

  To ensure that the public is protected, we may investigate and prosecute any offence under legislation dealing with the regulation of legal services, such as the Legal Services Act 2007 and the Solicitors Act 1974.

• 5.

  When deciding whether or not to prosecute, we will apply our decision-making criteria.

• 6.

  We consider that there is a particular need for firm enforcement action in protecting the public from unregulated people claiming or appearing to be authorised to provide reserved legal activities. This is sometimes known as 'policing the perimeter' of the services sector that we regulate. We will be particularly concerned to investigate and if necessary prosecute people we regulate or whose activities have some connection with the SRA such as a false claim that they are authorised by us. We may take action when there is no connection to the SRA but action is necessary to protect the public. We will work with other approved regulators and the Legal Services Board where necessary in deciding which regulator should pursue a particular case.

• 7.

  We will investigate and prosecute on a risk basis, taking account of our Enforcement Strategy.

• 8.

  Some new offences are directly related to our regulatory role. Examples of new offences from Schedule 13 of the Legal Services Act 2007 include:

  • 8.1.

    Failure by someone applying to be a licensed body to identify in its application any non-authorised person who holds or is expected to have an interest in the body and what this interest is.

  • 8.2.

    Knowingly to provide false or misleading information or documents. ²

• 9.

  We did not generally prosecute offences in the Solicitors Act 1974 when regulatory action was likely to be more effective. We may prosecute such offences (and those in the Legal Services Act 2007) where necessary on a risk basis, taking account of our Enforcement Strategy. This may be necessary to establish credible deterrence, particularly because some offences are fairly new, such as section 44BC of the Solicitors Act 1974 which makes it an offence for a person who knows or suspects an investigation is being or is likely to be conducted to falsify, conceal, destroy or otherwise dispose of a document which the person knows or suspects is or would be relevant to the investigation. ³

1. See R v Rollins [2009] EWCA Crim 1941 in which a prosecution by the Financial Services Authority was unsuccessfully challenged.

2. The examples are paraphrased here and reference should be made to Schedule 13 of the LSA 2007.

3. Section 44BC was inserted in the Solicitors Act 1974 by the LSA 2007. It is paraphrased here.