Criminal Liability in Regulatory Contexts Responses - Law ...

1.56 Giving that there is no sensible distinction between criminal and regulatory
offences and because the effect of punishment is the same regardless of name,
people accused of an offence categorised as “civil” should still enjoy the
procedural and substantive protections required to protect their basic rights and
reduce the risk of oppressive conduct by regulators. This doesn’t necessarily
have to mirror protections in the criminal procedure, but should include at least:
protection against self-incrimination, burden of proof should always be on
prosecution; and if a penalty is imposed initially other than by an independent and
impartial tribunal, the accused should always have the right to refer the matter to
an independent and impartial tribunal for a complete re-hearing at which the
burden of proof rests on the prosecutor.
1.57 “Re-hearing” used in the CP is a misnomer because there will not usually have
been an initial hearing in the normal sense when a “civil” penalty is imposed by
the regulator. Recourse of the person found liable for an offence by a regulator
should not be confined to a review of a regulator’s decision or an appeal on a
point of law. A regulator’s decision to deprave someone of his or her assets
should never be regarded merely as an administrative or discretionary matter
subject only to some form of JR. Should have the opportunity to refer the mater to
an independent and impartial tribunal for a full hearing at which the regulator
must prove all matters necessary to establish that an offence has been
committed and the appropriateness of any penalty.
Criminal Sub-Committee of the Council of HM Circuit Judges
1.58 Increasing burdens on courts. Financial restraints affecting and likely to further
affect the work of the courts. Also a steady increase in number of criminal
offences created many described as regulatory or quasi-regulatory. Regulatory
Enforcement and Sanctions Bill addressed some of our concerns but left large
areas of regulator enforcement in the CJS. Local Better Regulations Office
established and is listed as a quango being reconsidered by Government in a
“leaked” list.
1.59 Passage of time has not altered views expressed in Macrory review response
(annexed here). The role of the CJS arises where regulatory breach involves a
truly criminal act. Concerned about increasing use of criminal law as a way of
promoting regulatory objectives and public interest goals. A criminal offence is
only needed where conduct or action regulator involves really serious
consequences for public and breach is intentional or reckless. Otherwise,
inappropriate. Support idea of variable Monetary Administrative Penalties outside
criminal process for regulatory breaches enforced by way of civil remedy (eg Rule
75 Civil Procedure Rules).
1.60 There will be some situations where criminal sanction is appropriate where
breach does not appear to introduce the risk of really serious consequences for
the public at large but where the public interest factor is significant. Might
introduce some anomalies but it is a matter of making these situations an
exception (eg school attendance where the consequence of breakdown in
meeting educational needs may justify the intervention of the CJS where other
efforts have failed or failing to pay for motor insurance.)
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