Criminal Liability in Regulatory Contexts Responses - Law ...

1.528 Whilst these sanctions provide additional options to Trading Standards
regulators, they will not be suitable in all cases to address the wrongdoing or be
effective in bringing persons back into compliance with the law.
1.529 It is hoped that the outcome of this consultation and implementation of any new
regulatory regime does not pre-empt the conclusions and recommendations of
this pilot process, being conducted over a two year period, looking to commence
from April 2011.
GC100 (association for general counsel and company secretaries for the
FTSE 100)
1.530 The proposal is based upon the premise that civil penalties are the more
appropriate mechanism for low level crime. For this to be the case the proposal
should be supported by a clear hierarchy regarding the conduct that may lead to
a civil penalty as opposed to a criminal offence and in the level of sanction that
may be imposed. In all circumstances the process leading to the imposition of a
penalty should be independent of the regulator.
Kiron Reid, Liverpool Law School
1.531 Agree for businesses. This is appropriate in relation to regulatory measures,
where an alternative method could be used, such as a fixed penalty notice but
with breach or repeat conduct leading to a criminal offence. What the paper
describes as two-step are similar to the much overused, but not inherently
objectionable, harassment, ASBO or penalty notice for disorder model
(Commentators on their development including Geoff Pearson, ‘Hybrid Law and
Human Rights - Banning and Behaviour Orders in the Appeal Courts’ (2006) 27
Liverpool L.R. 125.)
1.532 Paras 1.35 – 1.36 highlight the flexibility of measures available under the
Regulatory Enforcement and Sanctions Act 2008. These include fixed monetary
penalties (s. 39); stop notices (s. 46) and ‘enforcement undertakings’ (s. 50). This
is welcome but a key concern is that there should be adequate safeguards for
recipients if these regulatory measures are used. In addition, the possible
relationship to the point made about the decline of enforcement, above, is selfevident.
There may also be a concern that fixed penalties would not adequately
take account of the greatly varying size and resources of businesses.
Judges of the Court of Session
1.533 We agree that civil penalties should be used where appropriate even if criminal
penalties remain on the statute book.
City of London Law Society
1.534 We agree. However, we suggest that if this proposal is taken forward, there
should be consultation on the list of criminal offences proposed to be repealed
and the civil penalty (or equivalent measure) proposed to replace them.
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