Criminal Liability in Regulatory Contexts Responses - Law ...

“regulatory authorities should make more use of cost-effective,
efficient and fairer civil measures”
“a set of common principles should be established to help agencies
consider when and how to use the criminal law” and
“existing low-level criminal offences should be repealed where civil
penalties could be as effective.”
1.212 The consultation paper argues that “the criminal law can and should be used for
the most serious cases of non-compliance with the law.” (Para. 1.5).
1.213 I specifically agree with these but will comment on background issues relating to
over criminalisation and poor quality criminal law; on the rational for the focus on
the regulatory context (that is largely relating to businesses) and to a limited
extent on specific proposals and consultation questions. The key interest of this
writer is how the criminal law effects individuals, while also being concerned
about effective action against harm caused by companies. Therefore I will make
some comment on the need for both consistency of principles as they apply to
businesses (this paper) and individuals (largely outside the scope of this paper),
and on the prospective benefits of the Law Commission carrying over the
principles set out in this paper to its projects on the liability of individuals in
criminal law. The principles set out in this paper should be used to inform the
Commission’s work to help improve both the general principles of criminal law
and specific categories of offence.
1.214 The general principles the Commission sets out should be consistent where
possible across criminal law, interpreted in the relevant context.
1.215 The suggested “statutory power for the courts to apply a ‘due diligence’ defence”
would certainly ensure the law was ECHR compliant in particular cases, even
though strict liability in general cannot be held to be in breach of the ECHR.
1.216 Background: The Labour Government were obsessed with creating new crimes
to appear tough on crime but that is often not an effective way to solve social
problems or change behaviour.
1.217 Lord Judge in the Supreme Court recently exclaimed “that for too many years
now the administration of criminal justice had been engulfed by a relentless tidal
wave of legislation. The tide was always in flow: it had never ebbed.” Regina
(Noone) v Governor of Drake Hall Prison (2010) Times Law Reports, 2 July, SC.
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