Criminal Liability in Regulatory Contexts Responses - Law ...

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GC100 (association for general counsel and company secretaries for the FTSE 100) 1.1063 We support this proposal. The absence of a due diligence defence for certain criminal offences can mean that statutes can operate unfairly leading to the conviction of the accused in the absence of fault or what might normally be considered criminal behaviour. The power to apply a due diligence defence, perhaps along the lines of the defence that exists within the Health and Safety at Work Act, is a concept familiar to the Courts. 1.1064 However, on occasions Parliament has intended, as a matter of policy, to create strict liability offences which were intended to allow for conviction in the absence of fault. Therefore more detailed consideration is perhaps required, alongside consideration of the role of civil penalties for strict liability criminal offences. Trading Standards South East Ltd 1.1065 TSSE does not agree with this proposal. It implies that the Regulatory arena of law is strewn with offences for which an element of mens rea is not required, yet, for which there is no corresponding statutory defence. It is the view of TSSE that such offences are few and far between. For those that do exist, it is the view of TSSE that this is because it was Parliament’s intention that for certain activities there can be no defence in law. 1.1066 TSSE is also concerned that the introduction of such a defence will lead to confusion within the Court process and inevitably wasted costs. Allen & Overy 1.1067 Proposals 14 and 15 should be read in the light of proposals as a whole, suggesting that the role of strict liability criminal offences should be limited to cases where wholly necessary. Where necessary, as a general principle, we agree that the courts should be given power to apply the defence to any statutory offence that does not require that D was at fault. Expect the courts would apply the defence in a way commensurate with harm caused by the offence that therefore there would be no need to adopt a stricter form of defence or for Parliament to restrict its application to certain statutes. 1.1068 Note that, to the extent that the law moves away from doctrine of identification, and the lower the bar for corporate liability may be set, the more important such a defence may become even in cases where fault is required. Existence of a defence may encourage companies to focus on processes (eg as seen with preparations for coming into force of Bribery Act). The more clarity provided about the level of due diligence the better. May be helpful for the Commission to obtain evidence from businesses about how they see this working in practice. 202
Association of Chief Trading Standards Officers (ACTSO) 1.1069 Need for certainty as to when defence applies to an offence. Certainly of benefit to regulator and those regulated. Should not be left for court to determine whether a general due diligence defence should apply in the circumstances – would be costly to regulators and regulated and lead to court time being wasted because of uncertainty. Correct and appropriate application for Code for Crown Prosecutors and local enforcement policies are likely to ensure prosecutors are not commenced for a breach of legislation without fault requirement if business concerned would be able to make out a due diligence defence. Is there evidence that current system doesn’t work? May not be the purest application of law, but cost of change needs to be balanced against benefit which is not clear. 1.1070 Re CP 6.39. Appropriate addition when offence is concerned with provision of information in many cases provided to the regulated body by another person. Context specific defences often required and general provision will be difficult to draft which encompasses all circumstances appropriately. 1.1071 Some offences (eg Reg 3 Consumer Protection from Unfair Trading Regs 2008) do not have a statutory defence since fault requirement is addressed in offence. Care needed to ensure applicability of general defence provision is clear to regulators and courts. 1.1072 Commonly businesses fail to respond to requests for info from regulatory agencies investigating breach of legislation. Trading Standards powers include provisions requiring disclosure and seizure of information required as evidence of an offence, but do not extend to information supporting any defences. Thus general proposal should be tempered by requirement on businesses to provide info on defences to regulators so that appropriate assessment of any defences can be made before proceedings are commenced. Trading Standards Institute (TSI) 1.1073 The Trading Standards Institute feels that the current system, whereby a defendant has to show due diligence for some Trading Standards offences, is acceptable. Justices’ Clerks’ Society, The Magistrates’ Association, QEB Hollis Whiteman Chambers, David Wood, Food and Drink Federation 1.1074 Agree / support. Local Better Regulation Office (LBRO) 1.1075 Defence may continue to work effectively if “all reasonable precautions” were to be retained. 203
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CRIMINAL LIABILITY IN REGULATORY CO
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1.8 The current approach of making
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1.21 We remain concerned that many
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Michelle Welsh, Monash University 1
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1.41 Looking for alternative dispos
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1.50 It is important that any regim
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1.61 Range of matters that may be s
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Raymond Schonfeld, Single Market Ve
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1.90 Sometimes appropriate to prose
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1.101 Note Commission’s point in
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1.113 Welcome Commission’s desire
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Trading Standards Institute (TSI) 1
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1.132 CP has misunderstood this imp
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1.144 There are different levels of
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1.156 We note, however, that it is
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1.167 The distinction between “tr
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1.173 Defence of due diligence: One
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Residential Landlords Association 1
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1.193 Any self regulatory scheme it
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1.201 Another issue in the case of
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“regulatory authorities should ma
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1.223 The paper says (n. 10) it is
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1.234 While for many arguments in t
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1.244 The identification doctrine i
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1.253 Decriminalising the regulatio
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1.262 The present position: Using k
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1.275 On the other, the immediately
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1.290 Another UK example of applica
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Judges of the Court of Session 1.30
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1.317 Spirit drinks in the EU are c
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1.325 Whether or not HMRC succeeded
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1.335 Furthermore, to suggest that,
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Criminal Bar Association and Bar Co
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1.346 The civil sanctions regime fo
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Trading Standards South East Ltd 1.
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1.363 Perhaps even more critically,
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(6) whether there are grounds for b
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1.380 Believes the aim of proposal
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1.393 Local regulators already (ie
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1.399 At what stage does reprehensi
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1.412 There is a reference at 1.47
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Both factors are relevant to a cons
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1.425 We do not think that the dete
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1.435 Further, it is considered tha
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1.449 The civil sanctions regime fo
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1.460 For my part, I struggle to se
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1.472 Very often an either-way offe
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Local Government Regulation (LGR) 1
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Institute of Employment Rights 1.48
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1.499 2008 Act limits the maximum f
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1.514 Agree. Residential Landlords
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1.528 Whilst these sanctions provid
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1.542 What is meant by “low level
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1.550 In addition ASIC sees value i
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1.557 Further, the RSPCA undertakes
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1.564 Civil remedies under the Ente
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1.573 FSA currently consulting publ
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EEF: The Manufacturers’ Associati
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1.595 Selling alcohol to children c
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Criminal Bar Association and Bar Co
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GC100 (association for general coun
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Faculty of Advocates 1.631 It would
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1.642 Agree. Criminal Bar Associati
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NHS Counter Fraud an Security Manag
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Local Government Regulation (LGR) 1
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Trading Standards Institute (TSI) 1
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(4) prosecution in relation to new
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Criminal Sub-Committee of the Counc
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CBI 1.717 Yes in principle, but see
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GC100 (association for general coun
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1.736 Procedural fairness is alread
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Trading Standards South East Ltd 1.
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Association of Chief Trading Standa
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1.765 It is also important that pro
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Kingsley Napley LLP 1.775 In our ex
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Page 155 and 156: 1.805 Agree. (3) Examples of Codes
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Page 159 and 160: Residential Landlords Association 1
Page 161 and 162: QEB Hollis Whiteman Chambers, Justi
Page 163 and 164: RSPCA 1.845 As stated in this respo
Page 165 and 166: Central England Trading Standards A
Page 167 and 168: 1.867 Due to a series of budgetary
Page 169 and 170: The Law Society 1.876 As a general
Page 171 and 172: City of London Law Society 1.886 We
Page 173 and 174: Criminal Sub-Committee of the Counc
Page 175 and 176: East of England Trading Standards A
Page 177 and 178: GC100 (association for general coun
Page 179 and 180: OFT 1.927 With regard to the fault
Page 181 and 182: The Faculty of Advocates 1.940 The
Page 183 and 184: Kingsley Napley LLP 1.952 Where the
Page 185 and 186: 1.964 Work to or involving asbestos
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Page 189 and 190: 1.989 There is also the situation o
Page 191 and 192: HSE 1.1000 We recognise that in gen
Page 193 and 194: 1.1012 We note that generally legis
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Page 207 and 208: 1.1094 This is an appropriate addit
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Page 215 and 216: HSE 1.1134 Under this proposal, and
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Page 221 and 222: 1.1171 I argue that the proposal to
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Page 231 and 232: 1.1244 Question 3: No. Negligence b
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Page 237 and 238: 1.1284 Q4: We do not agree with the
Page 239 and 240: HSE 1.1296 We are opposed to this p
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Page 243 and 244: 1.1312 The finding of the empirical
Page 245 and 246: 1.1319 Q3: We do not agree that an
Page 247 and 248: 1.1333 In that case, the Court of A
Page 249 and 250: 1.1343 We have set these matters ou
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