Criminal Liability in Regulatory Contexts Responses - Law ...

Trading Standards North West (TSNW)
1.862 Fixed penalties can already be challenged. There is currently the option to have
day in Court. TSNW would like ‘re-hearing’ defined in this instance. Would it be
the same process as a licensing review? TSNW agree that an appeal should be
made to a different body from the one which imposed the civil penalty.
Kingsley Napley LLP
1.863 We agree that a right of appeal on a point of law or by way of re-hearing, is
necessary for compliance with Article 6 ECHR. Consideration must be given as to
which is the appropriate court in terms of speed, expertise and cost.
1.864 We also note that the biggest downside of what the paper suggests is that, if
conduct is de-criminalised, then it is also taken out of the criminal system. In
consequence, those accused will not have access to legal aid and all the other
rights and safeguards that are afforded by the criminal system. Thus the
“defendant” is less able to defend himself in circumstances where the
consequences may still be severe; a defendant can lose his job and his
reputation. This impacts on proposal 9, as whilst the concept of a right of appeal
can exist, the likelihood of its correct exercise may be diminished if the accused
does not have recourse to legal advice.
Kingsley Napley LLP
1.865 Agree. A potential model could be based on the provisions in the Regulatory
Reform (Fire Safety) Oder 2005, that provide for appeal by way of complaint to a
Magistrates’ Court against enforcement notices.
PROPOSAL 10
Institute of Employment Rights
1.866 In relation to proposals 3 and 10, it is not clear from the Law Commission
document how we could differentiate clearly between low-level and high-level
criminal offences. More careful analysis is needed to inform these proposals,
particularly if we recognise the scale of the potential harms to the public and the
environment that corporate offending - even at ‘low levels’ - engenders. Given
their ubiquity and the scale of operations of some of the largest corporations, the
unique potential for economic, physical and environmental harms on the part of
corporations cannot be ignored. Together the proposals may undermine the use
of the criminal law against offending which engenders major risks. Already in the
case of health and safety offences, there are an increasing number of offences
that go unpunished in criminal law. 23
23 The figures cited in the following paragraphs are taken from Tombs, S and Whyte, D (2007) Regulatory
Surrender: death, injury and the non-enforcement of law, Liverpool: Institute of Employment Rights.
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