Criminal Liability in Regulatory Contexts Responses - Law ...

Residential Landlords Association
1.602 Agreed. There needs to be a programme of wholesale repeal. We would be very
concerned if a proposal was made but side lined by Government. We are,
however, concerned about the impact of EU directives because much of the
recent legislation which ought to be repealed has emerged from Brussels; some
times gold plated in the UK. A very significant part of new regulatory imposts
results from EU activity.
Trading Standards North West (TSNW)
1.603 Once it becomes administrable as a civil contravention then it would
decriminalise our current criminal offences – how do we deal with repeat
offenders and/or non payers? A recent Audit Commission report found that only
50% of fixed penalties issued by the police were ever paid. Given the contempt
such notices are held by 50% of the recipients can one justify moving to a system
that is ignored by half the miscreants. The possibility of fines and imprisonment
in the criminal justice system would not be treated with the same disdain.
Kingsley Napley LLP
1.604 Professor MacCrory’s report “Improving Compliance among Businesses” and the
legislation born of it, the Regulatory and Enforcement Sanctions Act 2008
(RESA), has been effective in making available a broader range of sanctions for
regulatory bodies – although the extent to which bodies have been able to adopt
these sanctions has been varied. Prior to the enactment of RESA, it was often
the case that the only enforcement option open to regulators was prosecution,
meaning there was no satisfactory means by which to punish small infractions;
the regulator had to choose between prosecution or taking no action. This was
obviously not a satisfactory situation. The introduction of RESA has vastly
improved the situation, opening up a range of sanctions to regulators, including
fines and remedial orders. This has enabled regulators that have powers under
the Act to punish wrongdoing and the creation of risk within their sectors
according to the severity of the offence, as well as providing appropriate levels of
deterrence. The existence of RESA would therefore seem to already have
addressed some of the criticisms made by the Paper and thus the Commission
seems really to be looking to refine what has already been put in place.
1.605 The main difficulty arising in the abolition of low-level criminal offences is that the
regulator may lack bite where there is a repeated history of non-compliance in
spite of the application of the RESA sanction. The SIA, for example, has three
sanctions available to it: warnings, improvement notices and prosecution.
Although a first offence may be disposed of using the first two, a second offence
will likely attract the third. Therefore, whilst RESA sanctions are not available to
those regulators who wish to avail themselves of them, it would not be
appropriate for those low level criminal-regulatory offences to be repealed in the
interim. It is important therefore to retain criminal offences as an option in this
situation.
1.606 It should also be noted that not all regulators have access to RESA powers due
to the unwillingness of sponsor departments to engage in the lengthy consultation
process that is required before order making powers are given or because of the
costs involved in setting up the new regime; or because of the uncertainty facing
many regulators.
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