Criminal Liability in Regulatory Contexts Responses - Law ...

1.723 However, the reality of the situation on the ground, perhaps does not mirror this
common sense assumption. The firm has extensive experience defending FSA
work, both in the criminal and regulatory spheres. Some interesting points can be
taken from this. The FSA does not tell a person how they will deal with them
when the prosecute; they simply start a criminal investigation and, ultimately, will
decide at the end of the investigation whether to proceed towards a criminal or
regulatory sanction. There are several reasons why, if your conduct is criminal, a
regulator might decide to deal with the case using its regulator rather than
criminal powers; regulatory proceedings are often concluded more quickly than
those within the criminal courts, sometimes regulatory prosecutions are harder for
a defendant to defend and weightier sanctions can be imposed. In one case we
found that whilst the client could have been prosecuted, sentenced and ordered
to pay a confiscation order of £100,000 if criminal proceedings had been
instituted, in fact because he was proceeded against before a tribunal, he was
given a £1.2million fine. It does not necessarily follow, therefore in all the
circumstances, that the criminal conviction will be the most serious outcome in
terms of punishment or deterrent effect.
1.724 It is also worth noting that for many individuals and organisations, the imposition
of regulatory sanction may have far greater impact than a criminal sanction. As
has been noted, many regulatory offences dealt with in the criminal courts result
in fines, which although designed to be punitive, are often proportionate to the
wealth of the individual or organisation. Meanwhile, the withdrawal of an
individual’s licence to work, removing their ability to practice within their chosen
profession or in the case of company directors, their disqualification, will have
more serious consequences.
Criminal Bar Association and Bar Council
1.725 Broadly agree with the general principle of a hierarchy of seriousness.
Seriousness, in the context of regulatory offences can be a measure not just
involving “deliberate‟ non–compliance but encompassing extent of potential
harm, extent of risk, how far below a standard conduct or a state of affairs falls (in
all these regards the consideration of “seriousness‟ in the Definitive Guideline on
Corporate Manslaughter and Health and Safety Offences Causing Death issued
by the Sentencing Guidelines Council) and, particularly in respect of
permissioning and licensing regimes, the importance of compliance with the
requirement.
PROPOSAL 7
Clifford Chance
1.726 Procedural fairness is critical not because it might increase confidence in the CJS
by because those accused (whether criminal or “civil”) are entitled to proper
protection. Applied to imposition of a penalty and also to the issue of regulatory
notices if breach of the notice is an offence. Courts should not only have power to
stay criminal proceedings until non-criminal regulatory steps have been taken,
but rather that if a regulator fails to observe due process, the normal outcome
should be that any prosecution should be permanently halted. Anything less runs
the risk of prosecutors neglecting the rights of those accused of wrongdoings or
of seeking to take shortcuts.
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