Criminal Liability in Regulatory Contexts Responses - Law ...

1.311 The Hampton Report recommended the use of a process, developed in the
Netherlands, called the Table of Eleven, which identified eleven factors which
enforcement regimes should take into account. The "chance of sanctions" and
"the severity of sanctions", are two of those factors and are identified as tools
which increase the likelihood of compliance.
1.312 The Hampton Report recommended that "administrative penalties should be
introduced as an extra tool for all regulators…" (emphasis added). The SWA
entirely agrees with that recommendation but notes that, by stating that
administrative penalties should be made available as an "extra" tool, the Report
anticipated that administrative penalties would be used in conjunction with other
pre-existing remedies, such as criminal prosecution.
1.313 The Hampton Report stated, with regard to "penalty regimes", that:-
Business and regulators have an interest in proper sanctions against
illegal activity in order to prevent businesses operating outside the law
from gaining a competitive advantage. At present, regulatory penalties
do not take the economic value of a breach into consideration and it is
quite often in a business' interest to pay the fine rather than comply.
1.314 Of course, making available a criminal sanction does not mean that the
enforcement authority has to take criminal proceedings if, for example, the
offender is a first time offender or the breach is not serious. The important thing
is that the enforcement authority has a range of sanctions available to meet the
circumstances of the offence.
1.315 The Government stated in relation to the Consumer Protection from Unfair
Trading Regulations 2008:-
The Government’s aim is to establish an enforcement regime that is
capable of tackling rogue and unfair practices effectively while
minimising burdens on legitimate businesses. The Government
agrees with the findings of the Macrory Review that this can best be
achieved by providing enforcers with a wide range of enforcement
tools so that they can carry out an entire range of enforcement
activities, from assisting compliance to prosecuting truly criminal or
rogue operators.
"CONDIGN PUNISHMENT"
1.316 The Hampton Report recommended "condign punishment" where regulations are
breached.
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