Criminal Liability in Regulatory Contexts Responses - Law ...

1.205 TSSE notes, however, that Professor Macrory did not indicate that there was a
definite case for decriminalisation. The overall structure of the consultation
paper, however, gives the impression that the ‘need’ to decriminalise certain
offences has already been established and it is merely a question of the
methodology that needs to be ascertained. TSSE is of the view, however, that
the consultation paper has not adequately addressed this aspect of necessity.
There are no examples, or evidence based fact, included in the consultation to
suggest that frivolous prosecutions are already occurring, with respects to low
level offending, within the Regulatory Context.
1.206 TSSE is firmly of the view that there is no basis for the majority of the proposals
put forward as part of this consultation and will comment on individual proposals
in due course. TSSE believes that the majority of the concerns raised in the
consultation are already capable of being addressed within the current regulatory
framework. Robust enforcement policies provide clear and coherent indications
as to what type of regulatory action may be taken and when; due regard must be
had by local authorities to the Statutory Code of Practice for Regulators; due
regard must be had for any primary authority relationship (overseen by the Local
Better Regulation Office) that exists in relation to any particular company; local
authority prosecutors will apply the same tests contained within the Code for
Crown Prosecutors as do the Crown Prosecution Service.
1.207 TSSE further notes that Professor Macrory also stated that a sanction should be
‘responsive and consider what is appropriate for the particular offender and
regulatory issue, which can include punishment and the public stigma that should
be associated with a criminal conviction’. TSSE believes that in order to consider
what sanction is appropriate for a particular offender, the widest possible range of
sanctions should be available to prosecuting agencies. To remove a particular
type of sanction would effectively mean that it is not always possible to target the
particular offender effectively.
1.208 TSSE is also concerned that to remove categories of offences from the criminal
arena will impede the investigative ability of local authorities. Statutory powers of
enforcement associated with criminal legislation may no longer be available
where they are based upon ‘suspicion of an offence’ or ‘belief of an offence’;
surveillance techniques and acquisition of communications data under RIPA may
no longer be available; money laundering investigations or confiscation
proceedings may no longer be available under the Proceeds of Crime Act 2002.
Kiron Reid, Liverpool Law School
1.209 It is very welcome that the Law Commission has called for a principled approach
to creating new criminal offences and for unnecessary minor offences to be
scrapped. In conclusion this respondent argues that the general principles they
set out are correct.
1.210 This response will refer (unless stated otherwise) to the Overview paper. Law
Commission papers are usually very thorough and well written, a great resource
for reference, for teaching (and for students) and for analysis of flaws in and
explanation of the current law but time has not allowed me to read the full paper.
1.211 I agree with the core proposals set out in the press release (25 August 2010):
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