Criminal Liability in Regulatory Contexts Responses - Law ...

1.838 We would note that firms and individuals have the right of appeal to the
independent Upper Tribunal (Tax and Chancery), a court of first instance, which
carries out a full rehearing, should they wish to challenge a regulatory sanction
imposed, or an administrative decision made, by the FSA. However, it should be
noted, firms and individuals may appeal against decisions of the Upper Tribunal
to the Court of Appeal or the Court of Sessions on points of law only.
Judges of the Court of Session
1.839 We agree that recourse to courts is necessary. Such recourse will require to
comply with the Human Rights Act 1998. We would be concerned that in some
areas of regulation there may develop an extra layer if the civil penalty is routinely
rejected and the determination of a court is sought. If that were to happen
frequently there would seem to be little point in attempting to deal with the matter
by means other than a court.
The Law Society
1.840 We agree with this proposal as we think it is very important to provide for
unfettered recourse to the courts. We do not think it would be enough, however,
for this to be limited to a judicial review of a decision or an appeal only on a point
of law – it is important that it is possible to have a full re-hearing in all cases.
1.841 The use of civil measures, with a full right of rehearing or appeal to allow access
to a court to challenge the imposition of that measure, and Proposal 1 - that the
criminal law should only be employed to deal with wrongdoers who deserve
criminal stigma and not be used as the primary means of promoting regulatory
objectives - taken together, provide a neat solution to the problem of removing
many regulatory offences from the criminal law.
1.842 There is a concern that by removing offences from the criminal jurisdiction, with
its due process guarantees, and turning them into civil offences, would allow
regulators to become ‘judge, jury and executioner’. However by allowing
someone accused of regulatory offence recourse to the courts preserves the rule
of law, and provides an essential safeguard against the oppressive or
overzealous regulator.
GC100 (association for general counsel and company secretaries for the
FTSE 100)
1.843 We support this proposal. Our comments elsewhere on civil penalties are
premised on the basis that they will be subject to process fairness and an
unfettered recourse to the Courts (not only by way of appeal on a point of law) is
fundamental to process fairness.
City of London Law Society
1.844 Yes. We think it is very important to provide for unfettered recourse to the courts.
We do not think it would be enough for this to be limited to a judicial review of a
decision or an appeal only on a point of law – it is important that it is possible to
have a full re-hearing in all cases.
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