Criminal Liability in Regulatory Contexts Responses - Law ...

Criminal Sub-Committee of the Council of HM Circuit Judges
1.702 May conflict with proposals 1 – 3. If creation of offence is not justified by
application of criteria set out in proposals 1 to 3 repetition of that conduct cannot
satisfy the criteria. Eg unlawful parking: no longer criminal offence simpliciter and
does not because so no matter how many times or for how long the motorist
unlawfully parks vehicle. Addition of a civil penalty upon another encourages
compliance, particularly if a variable Monetary Administrative Penalty scheme is
introduced. Reference to fraud (CP 1.45) likely to be inconsistent with the
approach to offences of fraud in CP 1.43.
1.703 Therefore do not support 6. If threshold in proposals 1 – 3 is crossed a previous
warning is likely to be otiose. Such warning might have a place in a scheme for
variable Monetary Administrative Penalties outside criminal law in cases where
threshold for creation of criminal offences is not crossed.
Trading Standards South East Ltd
1.704 TSSE supports the view that criminal sanctions should be part and parcel of a
range of sanctioning penalties, however, TSSE does not support the view that
criminal proceedings are only available once all other avenues have been
exhausted. TSSE believes it is sufficient for local authorities to publish a robust
enforcement policy, which indicates all available sanctions and clearly indicates
the circumstances under which they may be used.
North East Trading Standards Association (NETSA)
1.705 We are conscious of the large volume of criminal legislation and the potential cost
in court time for trial of technical offences. We would in fact welcome the
establishment of a specialist court to deal with regulatory offences, however this
reflects our view that the investigation of such offences requires specialist
investigators and take the view that that the situation outlined in 3.26 is
preferable.
1.706 We agree that criminal offences should, along with civil measures that
accompany them, form a hierarchy of seriousness. We are however concerned
over the analysis of the compliance argument in relation to European Law, and
specifically the suggestion made that it would have been a simpler response to
grant power to a Trading Standards Officer (TSO) to issue a monetary penalty,
stop notice or similar.
1.707 We feel that it is a fundamental omission in the analysis that no consideration has
been given to the provisions of the Enterprise Act 2002 (EA). For the purposes of
EA the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) are a
specified Community infringement (Reg. 26). This allows TSO’s to consider
formal undertakings and injunctive proceedings to achieve compliance, therefore
in relation to consumer protection the answer to the proposal is that the current
regime already gives the flexibility of both a hierarchal approach to sanctioning
and the non-hierarchal processes brought about by the regulations as discussed
and commended at 3.109.
1.708 The EA applies similar provisions to a wide range of consumer protection
offences and TSO’s would generally consider this route to achieving compliance
before a criminal prosecution, dependent upon local guidelines.
135