Criminal Liability in Regulatory Contexts Responses - Law ...

1.132 CP has misunderstood this important aspect of RES Act. CP 3.111 refers to a
two-step approach. In fact, where RES Act civil sanctions are available, a
regulator may nonetheless deal with non-compliance from the outset by
prosecuting the offence. UKELA supports regulators having an expanded
regulatory toolkit so they can respond to a breach in the most appropriate way
(by prosecution, civil warning, warning etc) and agree that criminal prosecutions
should be reserved for more serious cases. This should be a central
consideration in a regulator’s enforcement policy.
1.133 UKELA has misgivings, however, about the prescriptiveness of the proposals on
these issues and in particular the general proposals for decriminalisation by
repealing low-level criminal offences completely and reserving offences for
certain categories of breaches. A single offence may embrace a high range of
different factual scenarios of offending (eg breaching a permit condition may
range from the minor to the very serious depending on the circumstances) and
therefore it seems artificial to try to fit all offences and breaches into a hierarchy
of seriousness. In the environmental law certain activities are required by
Environmental Crime Directive to be subject to criminal offences and most
domestic environmental legal requirements implement European legislation.
Remedies for breaches must be effective, proportionate and dissuasive. CP
suggests the introduction of civil sanctions means regulators need no more rely
on criminal offences to implement European law but this conclusion seems to be
based on a misconception that RES Act civil sanctions replace criminal offences,
when in fact they coexist as alternative enforcement tools.
Nicky Padfield
1.134 Difficult not to agree with the vast majority of sensible proposals. Any attempt to
introduce rationality and principle has to be welcomed. CP particularly useful in
underlining the huge growth in the number of criminal offences in recent years,
many of which are rarely used; and the detailed and wide-ranging description it
provides, illustrating that costly and uncertain criminal prosecutions are often
ineffective (in terms of retribution or deterrence).
1.135 Four issues seem to have been ignored:
1.136 EU law and the law of other European states. Need to think harder about internal
consistency when so many civil penalties which arise have developed in the EU
context? Surprised that the CP does not use more examples from EU countries.
Amazing that the Data Commissioner can impose fines of up to £500,000 (Data
Protection (Monetary Penalties)(Maximum Penalty and Notices) Regs 2010/31).
Think the German example (CP 3.34) is wrong – money laundering always an
imprisonable offence if committed intentionally; if committed with gross
recklessness it is punishable by a fine or up to 2 years in prison; and money
forgery carries a maximum penalty of 1 year imprisonment.
1.137 Enforcement policies: often concern that some regulators may prosecute, fine or
warn according to their own misguided priorities rather than any transparent
policy. Should urge regulators to publish their prosecution politics and there
should be more effective regulatory oversight.
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