Criminal Liability in Regulatory Contexts Responses - Law ...

1.779 We strongly believe that enforcement guides should be clear and helpful. Those
that are vague in terms of prosecution policy may not meet process fairness
requirements. For example the enforcement guide for the FSA is non-specific
about prosecution of offences and indeed refers the reader to ask for further
information. Whether operating in the regulatory or criminal sphere, guidance
needs to be clear and easily available. We have assisted in the drafting of
practice notes for the HPC for their fitness to practice regime. We find that the
registrants, who may well be litigants-in-person, find this guidance helpful in
terms of understanding the process. We find that clear information and guidance
allows for fairness to those subject to liability, who will have a better
understanding of what their responsibilities are and how the process works. This
is clearly desirable.
Criminal Bar Association and Bar Council
1.780 Would appear to invite a significant extension to the power of a court to stay
proceedings as an abuse of the process. Arguably, it would require an effective
abandonment of the principle set out by the then Lord Chief Justice, Lord Woolf
in Environment Agency v. Stanford [1998] COD 373 DC, to the effect that the
jurisdiction to stay proceedings on the basis of abuse of process is to be
exercised with the greatest caution; the fact that a prosecution is ill-advised or
unwise is no basis for its exercise; the question whether to prosecute or not is for
the prosecutor; if a conviction is obtained in circumstances where the court, on
reasonable grounds, feels that a prosecution should not have been brought, this
can be reflected in the penalty.
1.781 As a result, courts may be faced with deciding frequent challenges to regulatory
prosecutions argued on the basis that the prosecutor’s view of the facts was
wrong, that the proper view of the facts discloses no offence of such seriousness
as to warrant prosecution and requiring the court to make preliminary findings of
fact prior to a consideration by a tribunal of fact.
1.782 There is an argument that all enforcing authorities should be required to not only
publish but adhere to the terms of an enforcement policy that sets out the criteria
for prosecution. There is thus argument also for formalising that requirement as a
statutory responsibility. If this were done then the existing powers of the court in
relation to abuse of the process would be sufficient to meet the demands of
process fairness.
PROPOSAL 8
Clifford Chance
1.783 Agree, except that we consider all amendments should be made through primary
legislation. It is not practicable to define what minor means for these purposes.
Criminal Sub-Committee of the Council of HM Circuit Judges
1.784 Wholeheartedly support.
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