Criminal Liability in Regulatory Contexts Responses - Law ...

1.150 The changes of principle proposed are simple to understand and we support
them. The point made above is indicative that great care must be taken later on
when these proposals are turned into practical procedures.
Faculty of Advocates
1.151 Aim of introducing rationality and principle into the structure of the criminal law,
especially when employed against business enterprises, seems laudable and
they share the concern about the proliferation of offences created by subordinate
legislation without any overall coherence in terms either of the choice to proceed
by the creation of an offence or of the approach taken to the formulation of those
offences.
The Law Society
1.152 The Criminal Law Committee has long been concerned about the expansion of
the criminal law into new areas of human activity, with the considerable increase
in complexity and lack of clarity that has occurred as a result. It has been felt
that criminal law has been too quickly resorted to by parliament and regulators,
leading to the inappropriate criminalisation of conduct.
1.153 This has resulted in an overly criminalised society. It has had the effect of
making the criminal law far more complicated than it should be. It is in this area
of the law that it is perhaps most important that the law-abiding citizen and
company can ascertain easily and precisely what it is that they are permitted, and
are not permitted, by law to do. Lawyers should be able to advise on this with
certainty.
1.154 Therefore, it is to be applauded that the consultation paper proposes that
behaviour that is not, strictly speaking, criminal and should not be dealt with by
the criminal justice system be taken out of the criminal law.
1.155 However, this support depends upon the proposed approach for civil penalties
being satisfactory and providing appropriate safeguards. We think more
information on what would be proposed is needed before a final view can be
reached. It is important that any regime for imposing civil penalties (i) requires
the same burden of proof before liability is established where the civil penalty
replaces an existing criminal offence ( i.e. the burden of proof before imposing a
civil penalty should be the same as for the criminal offence it replaces) (ii) offers
appropriate protections in relation to evidence (iii) ensures that the decision to
seek a civil penalty is kept separate from other regulatory decisions (iv) requires
a clear approach to determining any penalty to be imposed and (v) provides for
full rights of appeal to the courts. We are also concerned about the speed with
which action is taken and decisions are made and the inter-relationship between
any civil penalty proceedings and any criminal prosecution. We are also
concerned that sufficient resources are available for such an approach to work in
practice.
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