Criminal Liability in Regulatory Contexts Responses - Law ...

1.891 We also think the proposal as drafted seeks to over complicate the current
situation, and may well be seeking to suggest for example that a manufacturer of
a product would take less responsibility than a retailer? A court would look at
issues of remoteness and culpability in its considerations. Is it being suggested
that there are 4 offences and if authorities mis-categorise as dishonesty rather
than intention, knowledge, or recklessness then there is an acquittal?
1.892 We also contend that Parliament has intended that certain activities by their
simple commission result in criminal offences being committed. Parliament has
also recognised that in some circumstances prosecution may not be appropriate
where it can be shown that the offender has set up a system to avoid the
commission of any criminal offences, and, reviews that system to ensure it
remains effective. This is the basis of the statutory defence of ‘due diligence’.
The majority of offences for which Local Authority Trading Standards are the
enforcement agency already attract a statutory defence of due diligence. A
considerable body of case law exists to aid in the interpretation and application of
the due diligence defence. It is our view that should any person (including
companies by reference to the Interpretation Act) be able to satisfy the due
diligence defence then they will not face criminal prosecution at all. As such, fault
elements should only be present within offences for which there are no statutory
defences available
1.893 We are therefore confident that existing mechanisms within a consumer
protection context and the defences found within those statutes offer a
proportionate response to the issue of fault in criminal offences. Many offences
are of strict liability, subject to this statutory defence, and we believe this system
works effectively. Some offences, such as breach of the general prohibition on
engaging in a commercial practice which contravenes the requirements of
professional diligence require Mens Rea elements of “knowingly or recklessly”,
recognising that this more general prohibition in comparison to specific prohibited
actions justifies a higher fault threshold. We do not necessarily agree that the
harm test and the remoteness of harm will always be a valid guide. In some
instances neglect may seriously compromise the fair trading environment and
warrant criminal proceedings. This again will invariably be considered within a fair
enforcement policy. Further discussion might be needed on this issue to better
define what is meant by the link between gravity of harm done and level of
sanction imposed.
RSPCA
1.894 A person responsible for an animal can commit the offence of unnecessary
suffering under Section 4 of the AWA by an act or omission Thus criminalised
conduct can not be confined to offences which involve dishonesty, intention,
knowledge or recklessness.
1.895 Further, the test in respect of Section 4 AWA offences is well established to be
an objective test – what a reasonable, competent, caring person would do or
expected to do in the circumstances of the case.
1.896 The above proposal that only a higher fault element would be required, is a
lessening of the mens rea and is inappropriate in respect of AWA offences.
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