Criminal Liability in Regulatory Contexts Responses - Law ...

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Ivan Krolick 1.636 I agree in principle, but the existing law will need to be cleaned up to give effect to the principle. This not merely a regulatory/criminal issue. There is an increasing number of indictments charging statutory conspiracy (Criminal Law Act 1977) to commit fraud (i.e. fraud under the Fraud Act 2006) in circumstances where other indictments have charged conspiracy to defraud. Moreover the various provisions of POCA 2002 referring to a defendant entering into an arrangement to money launder, could also be charged as statutory conspiracy. Food Law Group 1.637 Agreed. We noted that there was no inclusion in the Law Commission’s proposals as to a potential overlap with the “by-pass” offence which usually takes the following form: “Where the commission by any person of an offence under any of the preceding provisions of this Part is due to an act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person.” 18 1.638 Although this is not an inchoate offence, it tends to be used in regulatory cases in place of an “aiding and abetting” offence. It is commonly used where a manufacturer supplies unlawful goods to a retailer which the retailer then sells 19 but this is not the only instance of its use. We note that, like the “consenting and conniving” doctrine it results in the conviction of the secondary offender of the primary offence. We raise the question of whether this needs also to be considered as part of the Law Commission’s review. CBI 1.639 Broadly agree the sentiments, although it may also be necessary to review how these principles are currently applied to particular offences, and experience in practice. Trading Standards North West (TSNW) 1.640 The law governing conspiracy can be useful but can significantly complicate matters for prosecution. Officers do use The Criminal Attempts Act and aiding and abetting offences – there only has to be knowledge that the act is occurring not that it is criminal in its nature. We feel conspiracy can be a sledge hammer to crack a nut. 1.641 For example the Addaway case – the Court play an important role, the Court therefore provides the checks and balances and whilst consistency is important (hence the application of an Enforcement Policy and the Code for Crown Prosecutors). TSNW recommend that we should not be paralysed by applying checks and balances before we get to Court. 18 Food Safety Act 1990, s.21 19 The structure of the legislation is often that the retailer is liable for the “supply” but the manufacturer has caused the commission of the offence. 124
1.642 Agree. Criminal Bar Association and Bar Council PROPOSAL 5 Clifford Chance 1.643 Agree. Possibly the problem could be reduced by improved training at, and greater specialism within, the office of Parliament Counsel. Trading Standards Institute (TSI) 1.644 Trading Standards Professionals do not have any powers under this legislation and would usually only consider investigations where there are elements of our existing legislation – e.g. Consumer Protection from Unfair Trading Regulations 2008. Criminal Sub-Committee of the Council of HM Circuit Judges, GC100 (association for general counsel and company secretaries for the FTSE 100), Justices’ Clerks’ Society, Leicester City Council, City of London Law Society, The Magistrates’ Association, Food Law Group, CBI, QEB Hollis Whiteman Chambers, Financial Services and Markets Legislation City Liaison Group 1.645 Agree / support. Chamber of Shipping 1.646 The point made appears to have merit. HSE 1.647 There are a number of offences under HSWA which may also amount to offences under the Fraud Act 2006. We agree that such duplication is undesirable. However, consideration also needs to be given as to “vires” to prosecute. Whilst the Fraud Act does not contain any restriction as to who can prosecute, such offences are normally prosecuted by the police and CPS. A regulator would have to demonstrate that prosecution of an offence under the Fraud Act came within its powers. Kiron Reid, Liverpool Law School 1.648 Agree. The wide recent Fraud Act 2006 provisions should both cover both preexisting offences and any conceivable areas where new specific offences might be thought to be needed. The explanation in para. 1.43 is entirely logical. Association of Chief Trading Standards Officers (ACTSO) 1.649 See general comments. Also, Trading Standards Services have no powers under Fraud Act (cf consumer protection legislation giving local Trading Standards authorise power to enter businesses premises etc) and therefore change would seriously restrict investigation capability of local Trading Standards Services. 125
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CRIMINAL LIABILITY IN REGULATORY CO
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1.8 The current approach of making
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1.21 We remain concerned that many
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Michelle Welsh, Monash University 1
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1.41 Looking for alternative dispos
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1.50 It is important that any regim
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1.61 Range of matters that may be s
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Raymond Schonfeld, Single Market Ve
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1.90 Sometimes appropriate to prose
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1.101 Note Commission’s point in
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1.113 Welcome Commission’s desire
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Trading Standards Institute (TSI) 1
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1.132 CP has misunderstood this imp
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1.144 There are different levels of
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1.156 We note, however, that it is
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1.167 The distinction between “tr
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1.173 Defence of due diligence: One
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Residential Landlords Association 1
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1.193 Any self regulatory scheme it
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1.201 Another issue in the case of
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“regulatory authorities should ma
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1.223 The paper says (n. 10) it is
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1.234 While for many arguments in t
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1.244 The identification doctrine i
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1.253 Decriminalising the regulatio
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1.262 The present position: Using k
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1.275 On the other, the immediately
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1.290 Another UK example of applica
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Judges of the Court of Session 1.30
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1.317 Spirit drinks in the EU are c
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1.325 Whether or not HMRC succeeded
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1.335 Furthermore, to suggest that,
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Criminal Bar Association and Bar Co
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1.346 The civil sanctions regime fo
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Trading Standards South East Ltd 1.
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1.363 Perhaps even more critically,
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Page 79 and 80: 1.399 At what stage does reprehensi
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Page 91 and 92: 1.460 For my part, I struggle to se
Page 93 and 94: 1.472 Very often an either-way offe
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Page 101 and 102: 1.514 Agree. Residential Landlords
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Page 107 and 108: 1.550 In addition ASIC sees value i
Page 109 and 110: 1.557 Further, the RSPCA undertakes
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Page 113 and 114: 1.573 FSA currently consulting publ
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Page 117 and 118: 1.595 Selling alcohol to children c
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Page 123: Faculty of Advocates 1.631 It would
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Page 137 and 138: CBI 1.717 Yes in principle, but see
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Page 141 and 142: 1.736 Procedural fairness is alread
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Page 147 and 148: 1.765 It is also important that pro
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Page 155 and 156: 1.805 Agree. (3) Examples of Codes
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Page 163 and 164: RSPCA 1.845 As stated in this respo
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Page 167 and 168: 1.867 Due to a series of budgetary
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East of England Trading Standards A
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GC100 (association for general coun
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OFT 1.927 With regard to the fault
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The Faculty of Advocates 1.940 The
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Kingsley Napley LLP 1.952 Where the
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1.964 Work to or involving asbestos
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Local Government Regulation (LGR) 1
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1.989 There is also the situation o
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HSE 1.1000 We recognise that in gen
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1.1012 We note that generally legis
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QEB Hollis Whiteman Chambers 1.1023
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1.1033 We are however of the opinio
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Trading Standards North West (TSNW)
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Judges of the Court of Session 1.10
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Association of Chief Trading Standa
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Care Quality Commission (CQC) 1.108
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1.1094 This is an appropriate addit
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1.1105 Furthermore, there are a num
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1.1113 Should the defendant fail to
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1.1121 Both sets of regulations enf
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HSE 1.1134 Under this proposal, and
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Institute of Chartered Accountants
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Trading Standards South East Ltd 1.
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1.1171 I argue that the proposal to
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Justices’ Clerks’ Society 1.118
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East of England Trading Standards A
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PROPOSAL 16 Clifford Chance 1.1217
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City of London Law Society 1.1231 W
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1.1244 Question 3: No. Negligence b
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Central England Trading Standards A
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Institute of Employment Rights 1.12
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1.1284 Q4: We do not agree with the
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HSE 1.1296 We are opposed to this p
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Michelle Welsh, Monash University 1
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1.1312 The finding of the empirical
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1.1319 Q3: We do not agree that an
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1.1333 In that case, the Court of A
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1.1343 We have set these matters ou
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