Criminal Liability in Regulatory Contexts Responses - Law ...

1.284 In turn, this raises directly the question of ECHR compliance, barely touched
upon in the Consultation Paper, although one of its Articles is clearly relevant,
and there are relevant cases on it. In brief, firstly, it seems clear from Engel and
Others v Netherlands (1976) A22, (1979-80) 1 EHRR 647, that “criminal charge”
in Article 6 has an autonomous meaning. Thus, states cannot unilaterally decide
what is a “criminal charge” for this purpose, and what is not. The test laid down of
what is a “criminal charge” therefore largely discounts domestic classification,
and depends chiefly upon two factors, that is, “the very nature of the offence”,
and the severity of the penalty (Engel, para [82]).
1.285 Nor should this surprise, for it will be recalled that in Proprietary Articles Trade
Association v Attorney General for Canada [1931] AC 310, at 324, Lord Atkin
clearly defined “criminal” simply as an “act prohibited with penal consequences”,
explicitly eschewing “intuit[ive]” or other standards, and this definition was
approved in R (McCann) v Crown Court at Manchester [2002] UKHL 39 where, at
[20], Lord Steyn described it as “classic”.
1.286 Secondly, it seems equally clear from Öztürk v Germany (A 73) (1984) 6 EHHR
409, that minor offences, not domestically classified as “criminal”, and enforced
by fines and not imprisonment had, in Engel terms, an essentially criminal nature,
so invoking Article 6(2) and (3). (Incidentally, on the facts, Article 6(3) was found
to have been breached).
1.287 These conclusions have been frequently approved in other ECtHR cases and,
moreover, applied by UK courts. An example in the UK is International Transport
Roth v Secretary of State for the Home Department [2002] EWCA Civ 158, in
which the “civil penalty” in question was that in relation to carriers’ liability for
clandestine entrants, under the Immigration and Asylum Act 1999 ss32-39. In the
House of Lords Second Reading, the Minister had boldly asserted that “As it is a
civil penalty the normal requirements in relation to fair trials and so forth do not
apply” (see HL Deb, vol 604, col 164). This assertion is worth noting, as the Court
of Appeal demonstrated its complete inaccuracy. By a majority explicitly applying
the Engel/ Öztürk criteria, the Court decided that the provision was a “criminal
charge” in terms of Article 6, because it was essentially an alternative to an
existing criminal offence, and had a punitive and deterrent penalty (Roth, at [33]-
[38] and[164]-[172]). It will be recalled that the Consultation Paper concedes that
even “low-level criminal offences” attract retributive and/or deterrent penalties.
1.288 Further, the Court decided that the provision actually breached Article 6. It was
unfair as it involved a reversal of the burden of proof, prejudicing the presumption
of innocence (per Jonathan Parker LJ, who was also concerned that role of the
courts was “limited to the provision of the mechanism for recovery”), and a fixed
penalty without possible mitigation, and enforcement provisions which were
disproportionate (per both Jonathan Parker LJ and Simon Brown LJ: Roth, at
[35]-[47], [150]-[170], [174]-[179] and [184]-[189]).
1.289 (It is to be noted that the Government response to Roth was to redraft the
provision, which now appears in the Nationality, Immigration and Asylum Act
2002, Sch 8. As, while it permits mitigation of penalties, the new provision
preserves the reversed burden of proof, liability decided by the Secretary of
State, substantial penalties, and little modified enforcement provisions, it seems
likely that it remains in breach of Article 6.)
54