Criminal Liability in Regulatory Contexts Responses - Law ...

1.201 Another issue in the case of enforcement by regulatory bodies (as opposed to the
Police) is the way in which orders for costs are made. Unlike the Police not only
does the Defendant, if convicted, have to pay the legal costs of the prosecution,
potentially, but also the investigatory costs. A shop lifter does not have to pay
the police officers costs of investigation. In some respects, this may be as “broad
as it is long” because, certainly for smaller business people, courts in many cases
probably look at the overall financial penalty, inclusive of these costs, “in the
round”. On the other hand, this may, of course, induce a perverse incentive to
pursue a prosecution. It is always a difficult situation where the regulatory body
is, in effect, financially interested in the outcome. This issue is looked at further
in the next section. Overall, however, we believe that issues such as this support
the proposals contained in the Consultation Paper that criminal prosecutions
should be avoided as a way of enforcing regulatory requirements in cases where
matters complained of cannot be said to be “seriously reprehensible”.
1.202 As indicated in the previous section the RLA is worried about situations where the
regulator can financially profit from the outcome. We believe that it is an
important principle that not just fines but also penalties resulting from regulatory
enforcement should go to the National Exchequer rather than be retained by the
regulator. Otherwise, there is the temptation for the regulator to impose a
disproportionate penalty because they directly benefit from it.
1.203 The RLA considers that the time has come to completely re-appraise the concept
of the absolute offence. This is a Victorian concept which was brought about at
the time when social regulation was in its infancy. However, times have changed
and there is far far more regulation now than there was then. We do not believe
that the absolute offence actually provides any kind of deterrent because it is not
understood generally anyway, particularly amongst the small business
community, such as landlords. Without being tempered in some way in any case
it is an unfair concept. This is particularly the case if criminality is to be attached
because, as we have pointed out elsewhere, the ordinary person would expect
some moral lapse to accompany a criminal offence and that there is some blame
attached. We believe that as a starting point if an existing offence is of an
absolute nature then it should be decriminalised and replaced by non criminal
sanctions of the kind envisaged by the Law Commission in these proposals.
Indeed, this would be a very useful working rule if existing offences were to be
reviewed en masse. This goes further, in effect, than the Commission’s
suggestions at proposal 14. We would endorse the idea of a general defence
but, we believe, that it is second best to a wholesale review.
Trading Standards South East Ltd
1.204 TSSE accepts the role of the Law Commission is to promote reform of the law.
TSSE also accepts that the basis for this consultation was the report, Regulatory
Justice:Making Sanctions Effective by Professor Richard Macrory. In his
comment quoted at paragraph 1.4 of the consultation document, however,
Professor Macrory states:
Some consultation responses have supported my view that there
may be a case for decriminalising certain offences
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