Criminal Liability in Regulatory Contexts Responses - Law ...

1.275 On the other, the immediately following para, A.21(2), asserts that the problem is
that “regulatory offences” are not treated harshly enough (“undermin[ing] the
signals of moral condemnation”, that is, failing to impose a stigma). This is
reinforced by the assertion in para A.21(11) that “low fines” “trivialise the offence
and remove any sense of moral [dis?]approbation”, and by the approbatory
reference in para A.38 to the FSA’s “highest fine, £17m”.
1.276 These conclusions on Proposals 1-3 must cast doubt on the rigour of the general
analysis.
1.277 In any case, as the paragraphs of the “Review” quoted above show, much of the
criticism of the use of criminal law in regulation seems to boil down to sentencing
policy, rather than categorisation of the conduct in question as criminal or
otherwise, and is thus a matter for the Sentencing Council rather than reorganisation
of the criminal law.
1.278 This somewhat insufficient and confused analysis in the Consultation Paper
nevertheless means that, in the result, it appears to be recommending merely rebranding
existing criminal offences as “civil penalties”.
1.279 (ii) failure to properly consider the requirements of the ECHR
1.280 The reference in Proposal 7 to more use being made of “process fairness to
increase confidence in the criminal justice system” seems positively misleading,
since para 1.47 makes it clear that this refers not to strengthening criminal
procedures, but rather to “clearer duties on regulatory authorities to warn
offenders .... that sanctions ... may be imposed upon them”,. Indeed, the role of
the criminal justice system is reduced to “the power to stay ... criminal
proceedings if ... the requirements of process fairness have not been met ...”, that
is, a plea in bar of trial.
1.281 Equally, the reference in Proposal 9 to “unfettered recourse to the courts” seems
positively perverse, for the whole thrust of the “civil penalties” Proposals is to
fetter such recourse. This is the case, even though para 1.51 admits that “fair
procedure” is a matter of “constitutional and European obligation” (seemingly a
reluctant reference to the ECHR rather than EU law) and “doubt[s] whether it is in
all instances likely to prove adequately fair ... for the regulatory authorities to seek
to restrict appeals”.
1.282 These conclusions are reinforced by reference in paras 1.35-1.37 to the
Regulatory Reform and Sanctions Act 2008, ss39 and 46. This reference makes
it clear by implication that this is the form of “civil penalty (or other measure)”
envisaged. However, in proceedings under these provisions:
the burden of proof is reversed; and
there is no right to trial, only to make representations and to appeal
the imposition of a penalty after it has been imposed.
1.283 Effectively, this renders a governmental body prosecutor, judge and sentence.
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