Criminal Liability in Regulatory Contexts Responses - Law ...

1.736 Procedural fairness is already a feature in this process. Whether a letter is sent
advising of the action we are taking, we provide details of who to contact in HSE
If the receiver wishes to make representations about the action taken. When an
enforcement notice is served, there is the right of appeal to an independent
employment tribunal and in a case in which there has been a fatal accident and
an investigation by the HSE, procedural fairness is provided for the existing rules
which govern criminal investigations. In such cases, it may be equally important
that any decision on prosecution is seen to have been taken independently.
There is already a system to safeguard procedural fairness in that a decision to
persecute could be challenged as an abuse of process if established and
published policies are not followed.
1.737 A second example in respect of permissioning regimes where there are
mechanisms for an appeal against refusal to give permission to undertake
activities.
1.738 Our view is that these procedures and process exist already and meet the aims
of this proposal. We would query why further legislation is necessary to achieve
an objective, when other non-legislative means are equally effective.
Judges of the Court of Session
1.739 We are not in agreement with this. We take the view that if the Crown has
decided to prosecute then the court should not become involved in requiring civil
proceedings to be taken. There may be differences in Scottish procedure in that
most, though not al, regulatory prosecutions are taken by the Crown Office and
Procurator Fiscal Service (COPFS) rather than by a regulator. Thus the court
would not wish to be involved in discussions of the Crown’s decisions to bring
proceedings.
Financial Services and Markets Legislation City Liaison Group
1.740 We support this proposal.
1.741 The FSA has a Regulatory Decisions Committee, which, although not
independent from the FSA, is independent from the decision makers involved in
the cases that come before it. The FSA is required under the FSMA to issue
statutory notices – commencing with a “warning notice” – to firms or individuals
when it is minded to take enforcement action.
1.742 However, whilst a right of appeal, taking the form of a hearing de novo, is
available to the independent Upper Tribunal (Tax and Chancery) (formerly to the
Financial Services and Markets Tribunal), in practice firms can be reluctant to
challenge FSA in regard to its enforcement powers, as they may be anxious to
maintain an open and co-operative relationship with FSA in the future.
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