All FSA prosecutions are carried out by an independent legal team, comprising two experienced prosecution lawyers and a case management officer.
The FSA is required to follow a hierarchy of enforcement, which – in the majority of cases - includes employing stages of verbal advice, written advice and service of a formal Notice to deal with non-compliances, before the option to prosecute is explored.
Once the hierarchy of enforcement has been followed to its conclusion, non-compliances will be referred for formal investigation. The investigation is carried out by a criminal investigator employed by the FSA, who will collect relevant evidence and will offer the opportunity for suspects to be interviewed in accordance with PACE procedures.
All investigative files are then reviewed by an experienced prosecution lawyer who applies the Crown Prosecution Service (CPS) Code for Crown Prosecutors when deciding whether the file should result in a prosecution.
This means that cases are not prosecuted unless the lawyer has determined that the two stage 'Full Code Test' is satisfied.
The first stage requires the lawyer to be satisfied that there is sufficient reliable and credible evidence to provide a 'realistic prospect of conviction' against each defendant.
The second stage requires the lawyer to be satisfied that it is in the public interest for the FSA to bring the case to court. The lawyer therefore needs to be sure that the public interest factors tending in favour of prosecution outweigh those tending against prosecution. Finally, the lawyer needs to be sure that it is proportionate for the case to be prosecuted.
More information about the Code for Crown Prosecutors can be found on the CPS website.
The FSA Prosecution team are also required to follow the FSA's Enforcement Policy (outlined at Annex 2 in Chapter 7 of the Manual for Official Controls), and Regulator's Code.