Criminal Liability in Regulatory Contexts Responses - Law ...

Association of Chief Trading Standards Officers (ACTSO)
1.755 Defining appropriate cases could be extremely complex. Appropriate should not
be defined by reference to legislation itself, since circumstances surrounding a
regulatory breach can vary significantly (eg previous compliance history of
business, whether business has otherwise acted in open and professional
manner, whether it is willing to correct behaviour). Thus important to consider
Code for Crown Prosecutors which although not binding most regulatory
enforcement agencies will have regard to. Code, Enforcement Concordate,
Regulators Compliance Code and local enforcement policies should ensure
process fairness that proposal seeks to create. Therefore, unclear why existing
regime requires change from practical perspective.
1.756 Agree.
Justices’ Clerks’ Society, The Magistrates’ Association, Chamber of
Shipping, Institute of Chartered Accountants of England and Wales
(ICAEW)
Leicester City Council
1.757 Requirements already exist in our enforcement politics which dictate that
prosecution is last resort. If policy identifies an appropriate alternative to
prosecution, must be exhausted prior to commencement of any prosecution.
Care Quality Commission (CQC)
1.758 CQC’s enforcement policy describes an approach that differentiates between
how and when civil and criminal enforcement powers will be used: civil
enforcement powers are used to ensure regulated services meet essential
standards of quality and safety and where necessary, this is done by limiting how
they operate, suspending operations and if absolutely necessary, closing
services down altogether; criminal proceedings are used where a provider was
capable of meeting these essential standards of quality and safety but did not.
1.759 CQC’s basic purpose is to make sure regulated persons understand what they
are required to do; check they are doing so and where they are not, take the least
restrictive, most proportionate steps to ensure compliance. CQC believes it is
appropriate to hold providers to account where they were capable of providing
proper, safe care but do not. Feedback to public consultation on CQC’s
enforcement policy indicates support for this approach.
Faculty of Advocates
1.760 In a Scottish context, the role of Procurator Fiscal is of importance. We
understand the reasoning behind this proposal but in Scotland, however, the
question whether the public interest requires a prosecution will have been
considered independently of the regulator before criminal proceedings are
commenced. Whether it would be appropriate for non-criminal regulatory steps to
be taken instead of prosecution ought to be part of that consideration and not
then subject to review by the court (the court can, of course, reflect in the
disposal selected any disapproval of the decision taken).
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