Criminal Liability in Regulatory Contexts Responses - Law ...

1.144 There are different levels of possible risk but he is not sure if the courts are to use
all levels of risk including extreme possible risk where the risk has not yet taken
place, but could happen. His view is that this case has set an important
precedent which reduces the individual’s rights under law. The level of proof
needed to convict someone under criminal law depends on the possible outcome
of an offence, which has not taken place.
1.145 Suggestions for improvement: (1) Regulations should be assessed on the actual
risk, not possible. If a property is inspected, it should comply with the regulations
on the day of the inspection and not on what could happen after. (2) There should
be a procedure for resolving disputes without going to court, which is costly for all
sides. (3) Consistent interpretation of regulations. (4) Consistent interpretation of
the criminal liability in regulatory context: the ruling of the High Court that the
level of proof required for conviction depends on the possible outcome of an
event which has not taken place put D in an impossible position because he does
not know beforehand what to defend against. There should be a consistent level
of proof so that all sides know the position before a hearing and not after.
1.146 Individual’s rights should be the same for all criminal prosecutions. Cannot
eliminate risk from everyday life and to base criminal convictions on an attempt to
do so is an infringement on the individual’s rights in law.
Engineering Employers Federation (EEF): The Manufacturers’ Organisation
1.147 Welcomes CP – challenges some important and fundamental aspects of
regulation that have hitherto been accepted as inevitabilities. Strongly supports
the key proposals. Regulation has an important part to play in providing
protections and ensuring a level playing-field. However, at present there is too
often a lack of proportionality in the way it is framed, imposing unnecessary
burdens that reduce global competitiveness and the jobs that it brings. There is a
pressing need for a set of binding over-arching principles to be established such
that regulation is properly considered, prioritised into a hierarchy of seriousness
and balanced by an appropriate due diligence defence.
Engineering Construction Industry Association (ECIA)
1.148 ECIA were involved in developing EEF’s consultation response and are fully
supportive of the points made in that response. This response deals with matters
of broader principle. The point the ECIA wish to make is more of a practical one,
which could become important if allowed to escalate.
1.149 The proposal is that less serious matters should be taken out of the criminal
context and placed into an administrative regulatory regime. Presumably this
means that any breaches of administrative requirements would be dealt with by
administrative sanction, which would be much simpler to apply. There is a danger
that this simplicity will prompt a mechanistic and bureaucratic approach to
‘enforcement’ of administrative requirements. For instance we might envisage
that oversight6 of record keeping requirements could be devolved to insurance
companies, they could easily automate administrative sanction taking by
computerisation (literally). This would inevitably lead to anomalies and do nothing
to distinguish between those who make an honest mistake and those who
knowingly don’t comply.
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