The Complaints Commissioner says FSA enforcement staff have shown a lack of understanding of the procedures used when searching premises and called for additional training for those conducting searches.
In the Office of the Complaints Commissioner’s annual report for 2009/10, commissioner Anthony Holland says he identified “potential deficiencies in the training and or knowledge of the FSA’s enforcement staff” in relation to search procedures.
He calls for improved training to avoid complaints over breaches of human rights or challenges against evidence collected during searches.
The report says: “Particularly, this related to an understanding that the warrants issued to the FSA authorising a search of premises require a police presence throughout the duration of the search rather than just at the time when the warrant is served on the individual or the firm.
“The commissioner recommended all enforcement staff involved in the execution of searches should be aware of the detailed requirements set out by the warrant to ensure the searches remain legal and the FSA is not subject to complaints stating that there has been a breach of a complainant’s human rights.”
City law firm Reynolds Porter Chamberlain regulatory partner Jonathan Davies says: “If the FSA has used its powers incorrectly, it could face potential legal issues from the person being searched but the FSA has legal immunity unless it has acted in bad faith or has contravened the Human Rights Act. It could, however, result in the rejection of evidence it has collected.
“These concerns would be strong justification for the Government to carry out its proposals to take criminal prosecution powers from the FSA and merge them with the Serious Fraud Office to create a new white-collar crime agency.”
An FSA spokesman says the recommendation relates to one incident that occurred on April 10, 2008 when FSA investigators visited the home address of an authorised director and his wife, who was an employee of her husband’s firm.
The FSA had a warrant to search the home address, but the director told the enforcement staff that the information specified on the warrant was at a business centre.
Two FSA enforcement staff remained and searched the home, while two police officers and a number of FSA enforcement staff went to search the business centre premises.
The director of the firm complained that the FSA team had illegally executed the search warrant at his home address. The FSA upheld the complaint.
In a decision letter dated July 10, 2009, the FSA stated: “The FSA accepts that the FSA investigators who remained at the property and continued to execute the warrant, in the absence of the PC’s, acted unlawfully, it being a requirement that a constable should have been present throughout the search.”
Reviewing the case, the Complaints Commissioner wrote on March 19, 2010 and there is “no doubt” that the search carried out at the residential house was illegal and breached the complainants’ human rights.
He said: “The FSA acted illegally through its own failings in a number of areas which I identify as a failure to train its staff in this important area effectively as well as a failure to record and/or check important information that it possessed prior to obtaining a warrant as to the exact location of premises to be searched.”
An FSA spokesman says: “This was just one isolated case and the enforcement division has already amended its training in this area.”