Criminal Liability in Regulatory Contexts Responses - Law ...

1.95 ACTSO understands legal reasoning behind proposals that Fraud Act could be
used instead of regulatory offences where overlap. Important to consider practical
consequences. Offences under Fraud Act viewed seriously by courts and
defendants. Commonly committed to Crown Court – adds burden to court system
(at least 2 additional hearings before trial) and Crown Courts are already
stretched to deal with more serious cases. Thus, can be almost a year before trial
once case is committed. If changes are implemented, likely to see less serious
offences proceeded as Fraud Act charged rather than regulatory offences.
Should have significant impact on Crown Courts and speed of prosecutions. Also
Trading Standards Services have no powers under Fraud Act and if this is not
addressed, and other offences repealed where overlaps, may render some
current consumer protection unenforceable.
1.96 CP doesn’t address question of use of regulatory offences by other agencies eg
police (eg using criminal sanctions under Licensing Act by police). Views of police
and CPS should be sought.
1.97 ACTSO concerned that blanket application of hierarchy may make it harder to
tackle issues eg anti-social behaviour from alcohol. Proposals in respect of
doctrine of delegation would have impact on same issue, making it harder for
action to be taken against businesses that fail to take effective action to prevent
illegal sale of age restricted products. Consequences of these proposals need to
be carefully examined to avoid unintended impact on issues outside intended
scope of paper (eg wider societal benefits from regulatory law).
1.98 Question comment at CP 1.21 regarding increase number of regulatory agencies.
Why are Trading Standards authorities mentioned specifically alongside local
authorities? TSS are part of local authorities and do not have specific law making
powers beyond powers available generally to local authorise in respect of byelaws.
Some but little use of bye-laws for regulatory purposes relating to Trading
Standards recently. Statement therefore appears erroneous and misleading.
1.99 CP 4.35. Fails to acknowledge that person likely to be harmed may have no
awareness of failure of regulated person (eg person who provides financial
advice without being accredited to do so may be putting the recipient of advice at
risk of loss). Recipient will not incur loss without acting on that advice, but
whether they act on advice or not will be unrelated to original regulatory breach
and will frequently be decision taken without knowledge of breach. Therefore
decision to act without legally require licence or accreditation should not be
considered less significant breach simply because recipient of service has to act
further to suffer harm as result.
BBA
1.100 Welcomes recommendation to decriminalise minor regulatory offences. Increase
since 1997 a waste of resources which merely services to create inefficiencies
within criminal legal system and financial services industry. Some offences so
trivial and potential penalties so sever, law comes into disrepute (eg s39(3)
Consumer Credit Act 1974 makes it an offence for a controlling company of a
licensee company to fail under s36(3) to give licensee notice within 14 days of a
change in controlling company’s directors; under s169 directors may be
personally liable and are potentially subject to 2 years imprisonment (sch 1)).
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