Criminal Liability in Regulatory Contexts Responses - Law ...

The Magistrates’ Association
1.581 Agree in general but note that civil penalties are not necessarily at a lower level
than criminal sentences and may be inflexible (eg introduction of regulations to
enforce continuous licensing for motor vehicles – registration keeper who fails to
conform to requirement to renew annual license sent a reminder with £80
penalty, reduced to £40 if paid promptly; next stage is fixed excise penalty of
£1000, enforced by courts if not paid, who have no power to reduce according to
keeper’s means. Disproportionate in relation to other offences and draconian to
the extent that DVLA do not enforce it after protests from all sides when first
attempted. This became law in s31C Vehicle Excise and Regulation Act 1994)
and DCA failed to spot the flaw.)
Care Quality Commission (CQC)
1.582 Attractive in principle but this proposal could have unintended adverse
consequences for the regulation of health and social care under current
legislation.
1.583 Assume that “civil penalties” include fixed penalties. CQC are able to serve fixed
penalties in relation to a number of offences but see this as a criminal process
rather than civil because they are essentially punishments and failure to pay the
penalty logically leads to prosecution.
1.584 First, Checks and balances on CQC’s enforcement powers under the Health and
Social Care Act mean that fixed penalties are of limited value in acting as
deterrent and holding people to account. CQC are required to serve a warning
notice that is not subsequently complied with before they can prosecute in
relation to most offences, even after having served a fixed penalty notice that was
not paid. Second, service notice providers served with a fixed penalty can refuse
to pay and comply with subsequent warning notice and therefore avoid being
held to account. Third, CQC are not allowed to include evidence in a warning
notice that has been complied with in any subsequent proceedings, civil or
criminal. Fourth, some providers are very large but more are small or mediumsized
businesses and the fixed penalties may have some deterrent effect on the
latter but not the former. If level of penalties could include variable rates for
proportionate and deterrent effects on different providers, the proposition may
have merit.
1.585 Additionally, no example in the Health and Social Care Act or similar legislation of
a fixed penalty being able to be imposed without there being an offence. Where a
penalty is not paid, the next step is prosecution.
Sheffield University LLB and Criminology Students
1.586 Very broad proposal. Raises questions. Is it practical and justifiable to repeal
criminal offences in this way? What evidence will be needed to support these
decisions (how does one measure whether a civil penalty is likely to result in the
desired level of punishment and deterrence)?
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