Criminal Liability in Regulatory Contexts Responses - Law ...

1.267 It is noted that, while the Law Commission’s original terms of reference were “To
introduce rationality and principle into the structure of the criminal law ...” (para
1.1), the report which is described as the “genesis of the main project”
undertaken (Macrory Regulatory Justice: making sanctions effective) referred to
“the case for decriminalising certain offences” (paras 1.3, 1.4). There is an
unresolved tension between these two statements: in brief, insofar as
“decriminalising” simply means the re-labelling criminal offences as “civil
penalties”, it introduces further confusion, and risks producing ECHR
incompatibility, rather than achieving “rationality and principle”.
1.268 This unresolved tension expresses itself in several specific ways.
1.269 The Proposals considered in this response appear, with respect, to flow from (i) a
somewhat insufficient and confused analysis, (ii) failure to properly consider the
requirements of the ECHR; and (iii) a form of “agency capture”.
1.270 (i) insufficient and confused analysis
1.271 It seems from Proposals 1-3 that:
(1) the terms “criminal” and “civil” are not properly defined;
(2) the test of what is “criminal” purportedly applied is unsupportable; and
(3) there is inconsistent thinking on the purpose of the sanction.
1.272 Thus, Proposals 1 and 2, read together, literally mean that any crime or offence
for which a first offender is unlikely to be sent to prison for a first offence, or
subject to a very large fine, should not be criminal at all. Since hardly anybody is
sent to prison, or fined very heavily, for a first conviction for the classic “mala in
se” offences of assault or theft, it would follow that, according to these Proposals,
assault and theft should not be “criminal” either.
1.273 Proposal 3 compounds the problem by referring to “low-level criminal offences”,
which plainly should not be criminal according to Proposals 1 and 2, as
undeserving of the “stigma associated with criminal conviction” because
insufficiently “seriously reprehensible conduct”. Despite this, seemingly
inconsistently, it considers that they merit penalties which are retributive
(“punishment”) and/or deterrent. Can retribution and/or deterrence be imposed
without stigma? (The significance of retribution and/or deterrence is also returned
to in relation to the ECHR).
1.274 Moreover, in the “Review” which underpins the Proposals, there is inconsistency
in the view as to how regulatory offences are to be regarded. On the one hand,
para A.21(1) of the “Review” (concretised in the implication in Proposals 1-3 that
“low-level crime” does not deserve the “stigma” of crime) plainly asserts that
crime is too harsh a categorisation (“disproportionate”) for “regulatory breach”.
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