Criminal Liability in Regulatory Contexts Responses - Law ...

1.129 Changes in legislation and policy on health and social care delivery have been
rapid in recent years. New or amended secondary legislation has been essential
in allowing regulatory processes keep up with this. If changes in regulatory
legislation were made only at primary level, regulation of health and social care
would not be able to keep pace with developments in service provision and
commissioning. Health and social care providers range from large corporations
with complex organisational structures to medium and to very small businesses.
Need a proportionate regulatory regime able to hold the range equally effectively
and meaningfully to account.
UK Environmental Law Association (UKELA)
1.130 Are there too many offences? Do not want to give a view on this; numbers alone
are too crude a measurement but we must recognise circumstances where a
proliferation of offences is inappropriate and problematic. Overlapping
requirements and offences can be confusing and hard for businesses to
understand. Offences can vary in approach, causing uncertainty. The same
business may be regulated by two or three different bodies, applying legislation
which takes different approaches to liability (strict, a duty subject to
reasonableness or subject to a statutory defence). Often difficult to find a
principled or rational explanation for the different liabilities. In such cases, the
answer may be to simplify or rationalise the rules. The environmental permitting
system is an example of this – single scheme with one set of regulations and one
core offence replacing a proliferation of regimes, regulations and offences for
different kinds of polluting activities. UKLEA supports this type of better regulation
initiative – makes the law more intelligible, consistent and less bureaucratic but it
does not amount to an exercise in de-criminalising because regulatory breaches
under environmental permitting still amount to an offence, albeit the rules are
expressed in a more coherent way. UKELA is not convinced that the answer to a
proliferation of offences is necessarily to repeal low-level criminal offences.
1.131 When is de-criminalisation appropriate? UKELA distinguish between decriminalising
by repealing an offence and by dealing with offending by means
other than criminal prosecution. UKELA aggress with general conclusions of
Macrory that prosecutions may be an inappropriate response to certain breaches
of environmental regulation. It may be more appropriate and environmentally
desirable in some cases to require a polluter to deal with the source of the
pollution, clean up or penalise them by way of a civil fine. This view lead to the
creation of the scheme of civil sanctions under the RES Act and a number of
sanctions will be used by the Environmental Agency from 2011. RES Act civil
sanctions have not replaced environmental offences but introduced as an
alternative way of dealing with offending in appropriate cases. It is therefore not
an example of decriminalisation by repeal and replacing them with civil sanctions,
but an example of expanding regulators tools sot that they can decide in any
given case whether civil or criminal sanctions are appropriate. This allows
“decriminalisation” by regulatory response if the regulator chooses to issue a civil
sanction instead of prosecuting.
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