Criminal Liability in Regulatory Contexts Responses - Law ...

1.743 We also consider that process fairness requires that the protections available to
those charged within criminal offences should not be removed because the
offence is categorised, or re-categorised, as leading only to a civil penalty. These
protections (eg against self-incrimination) remain important for anyone who may
be subject to a penalty of any sort; this is particularly relevant as the boundary
between criminal and civil offences in English law may not be coterminous with
the ECHR human rights boundary under Article 6 of the European Convention
on Human Rights .
RSPCA
1.744 There already exists a mechanism for the administrative enforcement of Section
9 (duty of care) under Section 10 of the AWA without first resorting to criminal
proceedings.
1.745 A Section 10 Improvement Notice can be issued where an inspector (as defined
by the Act) is of the opinion that a person is failing to comply with his/her duty to
ensure that an animal’s welfare needs are being met (under S9). The notice must
state the respects in which the inspector considers the person is failing to comply
with his/her duty under S9, the steps to taken and period of time in which to carry
these out. No proceedings can be commenced before the end of the period
specified in the Improvement Notice. The RSPCA mirrors these arrangements
within its own enforcement policy with regard to the duty to ensure welfare under
S9.
Institute of Employment Rights
1.746 In relation to proposals 7, 9 and 11 we do not agree that corporate offences and
individual offences should be further differentiated in this exercise. The Law
Commission’s argument about fairness simply does not hold water, particularly
when we consider that corporate offenders already are likely to have access to
more resources to support them through court proceedings than individuals. If the
effect of the measures being proposed in the document is indeed more likely to
boost business confidence in the justice system, this boost can only be achieved
at the expense of a further undermining of public confidence in the criminal
justice system.
Kiron Reid, Liverpool Law School
1.747 Proposal 7 appears to miss the point. (My apologies if the supporting arguments
and evidence are rehearsed in the full paper). What is needed is a clear and
simple process rather than a recourse to court actions. For example that needs to
guard against frequent changes of staff, lack of proper handover when staff
change, sometimes lack of direction from management, the need for training and
the need for the procedures (on enforcement, including the safeguards for
subjects) to be cost effective.
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