Criminal Liability in Regulatory Contexts Responses - Law ...

1.850 Whilst recourse to the courts should be possible, many recipients of a civil
penalty would be content to appeal first to the regulator concerned and should
not be obliged to appeal to the courts, which would add unnecessary cost to the
process. Experience of fixed penalty notices for littering shows that councils are
subject to a very high proportion of appeals. If this were to be generalised, we
would seek to be able to recover any internal or external costs of appeal.
Leicester City Council
1.851 Disagree: trial via the back door. Any improper decision by a local authority can
already be subject of JR.
The Magistrates’ Association
1.852 Agree very strongly. If there is the power for a regulatory body to impose
sanctions and penalties on a business there must be available an unfettered
route for that business to appeal the imposition preferably to a court of law.
Care Quality Commission (CQC)
1.853 Health and Social Care Act already includes means by which representatives to
CQC, appeals to an independent tribunal, and appeals to courts can be made in
relation to CQC’s civil and enforcement powers. In respect of Penalty Notices,
recipient can either accept it and pay the penalty or refuse to do so, in which
case, CQC can begin criminal proceedings leading to prosecution. In practice,
the Notice would only be issues if the offender admitted the offence and chose to
accept a fixed Penalty Notice in lieu of prosecution.
Faculty of Advocates
1.854 A regulatory scheme that makes provision for the imposition of a civil penalty or
equivalent must provide for unfettered recourse to the courts to challenge the
imposition of that measure. IN the Scottish context, sheriffs already have a very
wide jurisdiction to deal with the review, but summary application, of a wide range
of administrative acts (see Macphail’s “Sheriff Court Practice”). It seems that the
kind of recourse to the courts which is envisaged is properly funded by legal aid,
at least where the person concerned is an individual, because the alternative is
that any right of review, regarded by the Commission as essential, would be
illusory. The other question which would arise is that of expensive. A business or
individual prosecuted for a regulatory offence might, subject to the availability of
legal aid for he individual, have to pay for their own legal representative plus
whatever penalty was imposed b the court. A business or individual seeking to
challenge an administrative penalty would, in addition, be at risk of an order for
payment of the expenses of the regulator whose decision was being challenged.
In some cases, that would act as a disincentive to the exercise of the right of
recourse to the court and run contrary to what the Commission contemplates.
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