Criminal Liability in Regulatory Contexts Responses - Law ...

Judges of the Court of Session
1.306 The paper refers to the law of England and Wales, and in certain areas
comments and suggestions are made which are clearly applicable only to that
jurisdiction and not to Scotland, for example reference to the Fraud Act 2006.
However the matters which are covered by regulatory law include many which
are reserved, such as health and safety legislation and consumer protection
legislation. Thus there is an interest in this paper for Scots law.
Scotch Whisky Association
1.307 The SWA intends to comment primarily on a limited part of the consultation,
namely the general proposition to decriminalise many regulatory offences. In
particular, the SWA is very concerned that the laws governing the production and
sale of Scotch Whisky should continue to include the possibility of criminal
penalties. The SWA is proceeding here on the basis that the Scotch Whisky law
in question would be regarded in this context as “regulatory", and is concerned
that a 'one size fits all' approach should not be taken to decriminalising regulatory
offences (as considered in paragraph 3.16 of the consultation paper).
1.308 Scotch Whisky has being defined in UK law since 1933. Recently, at the request
of the industry, DEFRA introduced updated legislation, namely the Scotch Whisky
Regulations 2009 (SWR). During the development of this legislation, the Ministry
of Justice proposed that the penalties for breach of the SWR should be limited to
improvement notices seeking compliance, and penalty notices, the amount which
would be limited to between £1,000 and £4,000. The SWA argued strongly that
limiting the tools available to enforcement authorities to such minor administrative
measures was entirely inadequate for the purposes of ensuring compliance with
the SWR, that this approach conflicted with eminently sensible recommendations
made in various Reports prepared for the Government, and was contrary to the
EU harmonisation of laws protecting IP rights and in particular geographical
indications.
1.309 The SWA was therefore pleased when HMG agreed that criminal sanctions
should be available to enforcement authorities as one of the range of
enforcement measures available to them, depending on the circumstances of the
case.
GOVERNMENT POLICY
1.310 The Hampton Report stated:-
In designing regulation, and contemplating the inspection and penalty
regimes that will need to be set up, regulators or policy staff in
Departments should aim to devise regulations which, through their
incentive structures, point towards self-enforcement. For example, if a
regulation is hard to understand, poorly publicised, and the penalty for
non-compliance is trivial, only the most determined business -
assuming they know about it - will ever comply with it. If a regulation is
clearly drafted and well publicised, with self-monitoring routines that fit
with day-to-day business practice, and if checks on enforcement are
known to happen from time to time, with condign punishments for noncompliance,
then the regulation will, broadly speaking, be enforced of
itself.
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