Criminal Liability in Regulatory Contexts Responses - Law ...

1.101 Note Commission’s point in relation to fact that there are wide and more flexible
range of non-criminal measures available so that regulators do not have to resort
to criminal prosecution at such an early stage. Agree with underlying proposal to
reduce imposition of criminal liability to instances of serious reprehensible
conduct, express reservations where there is a corresponding increase in
powers/discretions of regulators to act in a prosecuting capacity. Regulatory
Enforcement and Sanctions Act does not provide accused an opportunity to
defend itself before judge/jury and so despite often providing more appropriate
and proportionate approach to liability in regulatory context, suggest that power
for regulators to administer civil measures should not restrict fair process and
company’s fundamental, right to defend itself.
NHS Counter Fraud and Security Management Service
1.102 NHS CFSMS is exploring use of alternatives to prosecution (eg conditional
cautions against people who defraud NHS, although this is a meal of disposal of
criminal offences rather than an alternative to the CJS). Proportionate approach
to low-level fraud and avoids criminal prosecutions which in low-level cases are
sometimes considered too costly and therefore are not pursued. Use of
administrative penalties has been explored but unlike conditional cautions they
are not recorded on Police National Computer. This is considered a weakness
particularly in case of staff fraud because employers can use National Computer
to check an individual’s record. Therefore administrative penalties were not
considered effective in terms of deterrence and prevention.
1.103 NHS CFSMS will take account of proposals when considering introducing new
offences relating to fraud or security management, will make an effort to
introduce new legislation only when absolutely necessary, and will continue to
push for more proportionate, cost-effective alternatives to criminal prosecution in
cases of low-level fraud.
Chris Williamson MP
1.104 Perhaps should consider less reliance on the criminal law for less serious
offences for a number of reasons. One is that the burden of proof, if pursued
under the umbrella of civil sanctions, would be significantly reduced. If we are to
use the criminal law in a regulatory context as opposed to a punitive one, we do
not have the intent to increase the burden on the penal system, but simply to
regulate activity of business. We can do this just as effectively by employing the
civil law to glean the correct outcomes, coupled with a higher proportion of
positive results due to the lower burden of proof ie on the balance of probabilities
as opposed to that beyond a reasonable doubt.
1.105 I believe it is advisable that all Government departments should seek to find a
more cost effective and fairer way of seeking to secure the legality of business
behaviour. It makes sense for Government agencies to use other avenues open
to them because we have become accustomed in this country to seeing masses
of secondary legislation which conflicts with other secondary legislation and even
some primary legislation. We must stop creating “dead law” to add to the statute
book. Secondary legislation can be created with virtual ease and this is
something which contributes to this problem greatly.
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