Criminal Liability in Regulatory Contexts Responses - Law ...

1.21 We remain concerned that many of the proposals in this consultation paper have
limited value in the field of consumer protection. Many appear not to fully
consider the position of the consumer. Businesses exist to make money and
they can only do that if they have a ‘consumer’ to which they sell goods or
provide services. The interests of the consumer, therefore, must be preserved in
any such consultation exercise.
1.22 We feel unable to support some of the proposals as they currently stand. If
criminal law in the regulatory context should be amended as a result of this
consultation exercise, then it must be done in such a way that affords the
greatest possible consumer protection and provides Local Authorities with the
appropriate enforcement tools to do the job with which they are tasked.
1.23 The act is supplemented by specific regulations most of which are made under
the Act following recommendations from HSE. In addition, we regulate licensing
and permissioning regimes. The structure of penalties for offences under the Act
and regulations is similarly simple (see response for further information).
1.24 Although the consultation is about the structure of the law and associated penalty
options, we feel it is important to mention HSE’s approach to enforcement, both
in policy terms and in practice. We enforce in accordance with our Enforcement
Policy Statement (EPS) and the Regulators Compliance Code. The enforcement
principles of proportionality, targeting, consistency, transparency and
accountability are enshrined within our EPS. When taking decisions on what is
the appropriate enforcement response, HSE works within an enforcement
framework – the Enforcement Management Model and Enforcement
Management Arrangements. This ensures we manage a consistent decision
making process that leads to appropriate responses.
Professor Colin Reid, University of Dundee
1.25 As we contemplate an ever-wider range of responses to infringement of the law,
the tendency is to see these as lying on a spectrum ranging from the most formal
type of criminal prosecution at one end to essentially voluntary responses at the
other, with a range of quasi-criminal, civil, administrative and non-legal processes
in-between. Yet traditionally the law has not recognised such a spectrum but has
drawn a sharp divide between the imposition of penalties, which is the exclusive
domain of the criminal law, and other forms of obligations between parties which
form the civil law. This is not just a quirk of United Kingdom law, since it is
repeated in the European Convention on Human Rights, where a party facing
significant penalties has particular rights, and the case-law of the European Court
of Human Rights has made clear that these rights depend not on the label
attached to the procedure (criminal/civil/ administrative) but on its nature (Öztürk
v Germany (1984) 6 EHRR 406 – itself a case based on the “administrative
penalties” in German law often held up as a model of non-criminal enforcement;
see also International Transport Roth GmbH v Secretary of State for the Home
Department [2003] QB 278). This underlying conceptual mismatch between
traditional constructs and the current ways of thinking needs to be more explicitly
addressed.
5