Criminal Liability in Regulatory Contexts Responses - Law ...

1.46 There is no evidence that criminal penalties are being used against corporate
offenders for anything other than the most serious offences. Prosecution for
some of the most serious offences, those that involve potentially criminal killings,
have become increasingly rare. This point relates directly to proposals 1, 2, 3, 6
and 10 and raises serious concerns about the assumptions underpinning the
argument for a hierarchy that is emerging here. There is little evidence that there
is a need the criminal law to narrow its focus, not least because regulators are
currently only able to use the law to respond to a very small minority of cases. In
the vast majority of cases, potential offences are not even investigated to
establish their seriousness.
1.47 Between 1999/00 to 2008/09, there was a 63% decline in absolute numbers of
Health and Safety Executive investigations, while during the same period the
proportion of incidents reported to HSE that were investigated also fell - by 54%.
This absolute and relative decline in investigation has occurred across every
category of RIDDOR reportable incidents to which HSE might be expected to
respond through an investigation – that is, dangerous occurrences, injuries to
members of the public, over 3-day injuries, and major injuries. So, between
1999/2000-2008/09, investigations of major injuries fell by 49% over 3-day
injuries fell by 85% dangerous occurrences fell by 35% injuries to members of the
public fell by 75%. By 2008/09, less than one per cent of over 3-day injuries that
were reported to HSE were actually investigated. Less than one in ten - 8% - of
reported major injuries were actually investigated.
1.48 It is therefore rather presumptuous to ask whether we might seek to use the
criminal law to target only the ‘worst’ examples of non-compliance, when in the
case of safety offences, we have no way of knowing, in the vast majority of cases
of recordable harms, whether these occurred as a result of any deliberate act or
omission.
City of London Law Society, Company Law Committee
1.49 Supports most of the Law Commission’s proposals in principle. However, this
support depends upon the proposed approach for civil penalties being
satisfactory and providing appropriate safeguards. We think more information on
what would be proposed is needed before a final view can be reached. Although
we agree that, in theory, it would be better to reduce the number of matters dealt
with by way of criminal offences, we do not think there will be better regulation if
matters currently dealt with by criminal law are instead subject to a number of
different regulatory regimes which are inconsistent and dealt with by different
regulatory bodies.
10