Criminal Liability in Regulatory Contexts Responses - Law ...

East of England Trading Standards Association
1.907 It is unclear whether this proposal is to be of general application, especially in
light of the statement made in paragraph 4.55 of the Consultation Paper – “The
interest of third parties, such as consumers, may thus be better protected in
some areas by a negative fault regime…”. This statement seems to argue that
strict liability with a due diligence defence is the most appropriate approach in
some fields.
1.908 Although the difficulties of proving mens rea are recognised, this proposal does
not specifically address them. It also raises the question of whether it would be a
requirement for the outcome of the risk taking to be foreseeable. In any event the
taking of unjustified risks should always be accompanied by appropriate
sanctions as surely the aim of regulation must be to deter such actions and to
encourage businesses to act responsibly.
Residential Landlords Association
1.909 As already indicated, the RLA has always been concerned at the concept of the
absolute offence. When thinking about it ordinary people would expect that to
impose criminal sanctions there should be some degree of fault or blame. At the
least one would expect culpability in the form for negligence connoting a degree
of carelessness meriting criminal censure. Indeed, in the case of certain
transgressions one can perhaps consider two tier offences. Alternatively, this
can be addressed through the imposition of penalties, applying a higher level of
penalty for example if there is intent instead of carelessness. To avoid over
complication two tier offences should, in our view, be restricted. One example
may be offences where dishonesty is involved or it may not be covering the same
ground. There are precedents for this for example under social security
legislation. Having said this, we agree with the general proposition contained in
this proposal.
Trading Standards North West (TSNW)
1.910 We believe this is over-complicating the matter. Is the suggestion that a
manufacturer of a product would have less responsibility than a retailer? The
Court considers remoteness and culpability anyway. Is the suggestion that there
are 4 offences and if an offence is mis-categorised as dishonesty rather than
intention, knowledge, or recklessness then is there an acquittal? If a Director just
says ‘no comment’ then is there no ability to continue to successful prosecution?
How are offences decided upon? Presumably we would consider laying
informations for all offences and withdraw based on negotiations with defence?
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