Criminal Liability in Regulatory Contexts Responses - Law ...

Local Government Regulation (LGR)
1.666 In a regulatory context many offences deal with matters which may be considered
to fall under the umbrella of constituting fraud against consumers. Matters falling
within the scope of the Consumer Protection from Unfair Trading Regulations
2008, (CPR’s) or Trade Marks Act 1994 for example. These examples of
legislation provide business with a detailed structure of proscribed matters when
conducting a business.
1.667 However unlike the specific enactments they enforce, Local Authority regulators
do not have any enforcement powers under the Fraud Act, unlike the Police as
they have general powers of enforcement by virtue of the Police and Criminal
Evidence Act 1984. Police are unlikely to have the resource, or the will, to pick up
what amounts to regulatory crime under their Fraud Act activities. In our
experience most police commercial fraud units are unlikely to put resources into
investigations where the financial losses involved are less than around £250,000,
unless there is a link with organised crime groups or some other priority policing
area. If Local Authorities were given powers, duties and funding, it would be
possible to overcome these issues, and we would welcome such an opportunity
to deal robustly with commercial fraud. Without this, Local authority lawyers and
sometimes courts question whether the Fraud Act should be used by Local
Authorities at all.
1.668 Unless this is addressed then the proposal, (including the absence of a statutory
definition of the term ‘fraud’) we consider that it will result in lower levels of
protection for the public and allow those who truly warrant prosecution to possibly
escape punishment. Furthermore to replace such regulatory measures with the
more general offences under fraud may result in greater uncertainty for business.
Detailed guidance would need to be provided to cover a variety of circumstances
and differing trade sectors. Lack of specific regulation could make it difficult for
businesses to obtain advice that gives them certainty of outcomes. Currently
Local Authority regulators do sometimes use the Fraud Act as an adjunct to the
work that is done under core legislation, where appropriate.
1.669 The consultation appears to us to have been written from a business perspective,
with good reason to do so. What becomes apparent from this perspective is that
it is considered that these issues could be resolved if the regulation of businesses
were based on a sector approach, with a regulator responsible for all regulation
of a single industry, rather than a legislation based approach.
1.670 From a regulator’s point of view, however, this could be difficult to achieve as it
would require regulators to become generic enforcers of wide ranging legislation.
We know government will be aware of regulators’ attempts to work towards such
solutions and the levels of success of some projects in this area.
Residential Landlords Association
1.671 Agreed. As a general principle if there is a general law dealing with the matter
why should it be repeated as a criminal offence in the regulatory context?
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