Criminal Liability in Regulatory Contexts Responses - Law ...

Central England Trading Standards Authorities (CETSA) and West Midlands
Region County Chief Environmental Health Officers Group
1.761 A system of requirements to warn offenders before taking issues to courts is
generally reflected in all local authority regulators’ enforcement policies.
However, there are businesses where their activity and / or responses are likely
to render this approach counter-productive. With some itinerant or mobile traders
identity is an issue. Therefore adequate recording of advice / warnings is not
possible. For example, car boot trader selling counterfeit goods should not need
to be warned before goods are seized. This would only add to the issues created
by such requirements under current legislation. For example, under the Housing
Act, landlords and tenants must be given 24 hours “prior notification of
inspection”, even where the inspection is as a result of a complaint from a tenant
that, for example, they have no heating in winter or no water supply. For rogue
landlords this is enough time to illegally evict tenants so that there is nothing to
inspect. Catching fly-tippers in action is very difficult. Having to warn them in
advance, then having to catch them again, would add to the already obvious
difficulties in bringing the guilty to justice. The courts can intervene where an
authority’s failure to follow its own enforcement policy amounts to a plain abuse
of process.
Ivan Krolick
1.762 I agree with the sentiment. However I am not sure what cases are to be regarded
as “appropriate”. Should not the principle be extended to enable the courts to
stay proceedings generally where a defendant has not been warned that he is
about to unwittingly commit an absolute offence? See R --v- Liverpool Stipendiary
Magistrate ex p Slade [1998] 1 WLR 531 (QBD) where the police allowed a
person to take an unmuzzled pit bull terrier away from a police station, and then
prosecuted him for it.
Food Law Group
1.763 The Group endorses this proposal. We do not agree with the position of the Bar
Council that because there are at present no criteria by which criminal courts
should stay proceedings in the regulatory field unless those proceedings are an
abuse of process and therefore exceptional, criteria which limit the circumstances
in which proceedings may be commenced should not be introduced. The idea
that proceedings may not be commenced unless certain preliminary steps have
been taken is not new. For example, mechanisms restraining prosecutors from
commencing proceedings until after regulatory steps have concluded already
exist in the Regulatory Enforcement and Sanctions Act 2008. See sections 28
and 29 of the Regulatory Enforcement and Sanctions Act 2008 currently
applicable where a primary authority has given advice. A requirement that
regulatory steps such as warnings, notices, cautions or other occurrence should
happen before a resort to prosecution does not involve an abandonment of the
principle in Environment Agency v Stanford [1998] C.O.D. 373 DC.
CBI
1.764 Strongly agree. This would be consistent with the Civil Procedure Rules’ attempts
to discourage unnecessary civil litigation, and to increase confidence in the civil
justice system, by requiring parties to civil litigation to consider non-litigious
methods of resolving their dispute before a claim is brought.
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