Criminal Liability in Regulatory Contexts Responses - Law ...

1.67 Fully support use of due diligence defence (similar to that under Food Safety act
1990 to food-related offences). Welcome proposal for non-statutory guidance to
all Government departments. FSA already considering its sanctioning regime and
investigating what works in particular circumstances. Further guidance might
generate useful discussion of more imaginative approaches to creating and using
sanctions. Need to focus on what sanctions work to ensure practicality. Would
like clarification of when the guidance would take effect (would departments apply
it retrospectively?)
1.68 Consultation focuses on theory but fails to acknowledge practicalities. Gaining
access to Macrory-type sanctions under Regulatory Enforcement and Sanctions
Act is onerous. No recognition of difficulties. Sanctions not available in Scotland
and NI. Consideration should be given to potential complication of differing
enforcement regimes across UK.
Lord Goodhart QC
1.69 Use of civil penalties increasing in recent years. Now well established. Likely to
be quicker, cheaper and often fairer than criminal penalties. In many cases, civil
penalties will suffice and criminal should be repealed. IN some cases, room for
both penalties – criminal penalties where there are grounds for imprisonment or
where defendant has acted knowingly and deliberately in breach of the law.
1.70 Suggestion that criminal offences should be created only through primary
legislation is interesting. House of Lords’ Delegated Powers and Regulatory
Reform Committee (chairman between 2006 and 2010) was frequently faced with
Bills which contained powers for Gov to make regulations by SI which would
impose criminal liability, including possibility of imprisonment. Caused concern to
Committee, but Gov as a rule accepted that it would not use secondary leg to
create offences giving rise to a potential prison sentence of +2yrs. I think there
should be no power to create prison sentences by secondary legislation but I do
not think there should necessarily be a ban on imposing criminal sentences by
secondary legislation where penalties do not include imprisonment (see some
reports of Committee where issues were raised or talk to senior legal adviser to
Committee, Allan Roberts).
1.71 Was a member of joint pre-legislative committee on Bribery Bill. Doctrine of
identification is profoundly unsatisfactory and should be abolished. Government’s
original draft of the Bill accepted the doctrine. Throughout meetings I pressed for
it to be removed, which was eventually agreed. The Act does contain a due
diligence defence, which is in the circumstances appropriate because of the
difficulty of controlling foreign agents. Not appropriate in all circumstances.
1.72 It may be unclear until evidence is heard in court whether D has been acting
deliberately or recklessly or has been merely negligent or careless. In such
cases, it is necessary (at least desirable) that where there is a criminal
prosecution and the judge is satisfied that there has been a failure to comply with
regulations but the failure does not justify a criminal sentence, the judge should
be able to impose a civil penalty.
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