Criminal Liability in Regulatory Contexts Responses - Law ...

1.765 It is also important that process fairness exists and operates in all proceedings,
not just for criminal prosecutions. See also our earlier comments.
1.766 Consideration should also be given to imposing a duty to stay proceedings in
appropriate cases if there has not been substantial compliance with appropriate
processes and, rather than this just being a power within the court’s discretion.
East of England Trading Standards Association
1.767 Local Authorities are already experienced in operating such a regime through the
provisions of the Enterprise Act.
1.768 However this proposal does give rise to a number of additional considerations.
For example would it apply to those offences for which mens rea is an essential
ingredient? How would it address those matters which require immediate action,
e.g. significant safety issues, those which have an adverse impact upon the
economic well being of consumers or those which target the most vulnerable
members of society?
1.769 If introduced we believe that such a measure will only result in uncertainty for
both regulators and those who are regulated. We also believe that the current
checks and balances which already exist within Local Authorities in the form of
published Enforcement Policies and adherence to the Code of Practice for Crown
Prosecutors provides ample opportunity for regulators to engage with those
businesses who wish to comply with the law, whilst at the same time allows
prompt action to be taken against those who do not.
Local Government Regulation (LGR)
1.770 We agree that more use should be made of process fairness to increase
confidence in the criminal justice system. As outlined above the Enterprise Act
prescribes specific mechanisms for consultation with offenders before legal
proceedings are instituted. This reflects common practice in Trading Standards
services when considering many offences and investigating complaints. This is
also generally reflected in local enforcement policies and it is unlikely that a
formal procedure to stay proceedings would present a difficulty. We feel that
there will be some circumstances where it would not be appropriate to warn
offenders (e.g. prolific counterfeit sales via online auction sites) as this would
serve to drive the criminal to take additional steps to avoid discovery.
1.771 However this proposal does give rise to a number of additional considerations.
For example would it apply to those offences for which Mens Rea is an essential
ingredient? How would it address those matters which require immediate action,
e.g. significant safety issues, those which have an adverse impact upon the
economic well being of consumers or those which target the most vulnerable
members of society?
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