Criminal Liability in Regulatory Contexts Responses - Law ...

1.61 Range of matters that may be subject of regulator enforcement action is large.
Strong case for decriminalising large areas of regulatory non compliance taking
many current examples of regulatory breach outside the CJS. Agree that using
criminal process results in expense and delay for parties. It also adds expense in
provision of the courts. Sceptical about “regulators” perceived view that judges do
not have the specialised knowledge or training to ensure what the “regulators”
perceive to be appropriate and proportionate sanctions. Very many prohibited
activities are far from being truly criminal acts. Nonsense to find some truly
criminal activities (eg throwing stones at trains) are dealt with by fixed penalty
outside court process and some truly regulatory matters (eg not processing a TV
licence) take up court time. CP is aimed less at ways in which the current position
might be reformed but more at when criminal offences might be created in future.
Further creation of offences against the background of what we consider to be
overuse of criminal law in the regulatory field must be approached with great
caution and reservation.
1.62 Worried re increasing trend towards legislation by delegation. Too often that
primary legislation provides for the creation of offences by regulation or order
where there are no proper checks and balances and criminal offences are
created without reference to legislators. Legislation creating “agencies” often
result in those “agencies” pushing for powers by way of secondary legislation, the
consequences of which include lack of appropriate legislative overview and
disproportionate response to what those “agencies” consider to serve their best
interests. Proliferation of “agencies” might be addressed through Government’s
intended reduction of quangos.
1.63 Caution against placing too much reliance on statistics in CP 1.26 as support for
contention in CP 1.27. Worrying increase in number of criminal offences dealt
with by fixed penalties and cautions. Coupled with absence of any real
consistency from one criminal justice area to another has resulted in an overall
drop in the numbers of criminal defendants appearing in Mags’ courts. May be
that an increase in regulatory offences has been masked by a drop in
proceedings taken against those engaged in truly criminal activity.
1.64 Criminal law should only be employed when engagement in the prohibited
conduct in question warrants official censure because it involves a harm related
moral failing.
Food and Drink Federation
1.65 Broadly support the Commission’s stated aims to introduce rationality and
principle into the structure of the criminal law, especially when it is employed
against business enterprises.
Food Standards Agency
1.66 Agree that the Macrory sanctions under Regulatory Enforcement and Sanctions
act are potentially attractive, but no acknowledgement of difficulties involved in
achieving access to them eg the requirements for a second assessment of
Hampton compliance and reconciliation of the complication that the Act doesn’t
apply to Scotland and NI. FSA is UK-wide and civil sanctions are relatively
untested.
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