Criminal Liability in Regulatory Contexts Responses - Law ...

Faculty of Advocates
1.631 It would make for a more coherent legal system is duplication was avoided,
leaving inchoate offences, attempts and fraud to be dealt with by existing general
rules. In Scots law these matters are largely regulated by common law and the
law is, therefore less codified. For the most part, this should not cause any
difficulties but there might be a potential problem at the margins because it
cannot be assumed that the coverage by the Scots common law rules and that of
the legislation in England and Wales is necessarily coextensive. As the Scottish
Law Commission has recognised, many of the regulatory regimes relate to
reserved matters. It is, in any event, incumbent on Westminster Departments
making policy in reserved matters to approach their task in a way which treats
Scots law as an integral part of their task and not as an “add on”. Proposal 4 can
be understood as having reference to both legal systems but proposal should be
amended so as to refer also to the law of fraud in Scotland as well.
Central England Trading Standards Authorities (CETSA) and West Midlands
Region County Chief Environmental Health Officers Group
1.632 In principle this is difficult to argue against. We would be supportive of a
consistent way of dealing with inchoate offences. However, when written directly
into specific statutes a simpler test is often applied. The mens rea elements of
the inchoate offences can be difficult with extensive case law to consider, for
instance on what amounts to “an act that is more than merely preparatory”.
1.633 The advantage of having attempts, in particular, in specific legislation is that it
promotes “ownership” of the offences by a specific regulator, who is likely to be
under a duty to enforce. Whilst we can see the issue with Parliament’s practice
of writing offences into new legislation that are already covered by the inchoate
offences, we believe they may have done so deliberately, in order to promote
certainty where using the inchoate offences would not do so. If we are to cease
having such offences in the primary legislation we would ideally like a review, and
simplification, of the requirements necessary to establish inchoate offences.
1.634 Using other legislation also introduces another layer of complexity. Costs
increase when legislative issues become complex. If there is less certainty,
issues are less likely to go to court. Experience leads us to suggest that local
lawyers are likely to be less supportive and more reluctant to prosecute under, for
example, the 1981 Criminal Attempts Act.
1.635 There is a considerable amount of comment in the consultation paper about the
CPR’s and the implication seems to be that these regulations only have criminal
offences incorporated into them as this was the easiest way of implementing the
directive. In fact the opposite is true, which the authors of the paper could have
established had they asked either BIS or the Trading Standards profession. The
original regulations contained entirely civil remedies with no criminal offences.
The offences were introduced after a long period of consultation between BIS,
regulators and businesses. This consultation was afterwards held up by BIS as a
model as to how future regulation of this type should ideally be conducted as it
resulted in workable, proportionate regulation of business that included criminal
offences.
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