Criminal Liability in Regulatory Contexts Responses - Law ...

1.330 As a result, the Scotch Whisky Regulations are scrutinised in every country
abroad where the Scotch Whisky Association takes legal action to protect Scotch
Whisky. It would be damaging in the extreme if it became apparent to foreign
countries that breach of the Scotch Whisky Regulations were penalised only by
minor administrative remedies and could not be the subject of criminal
prosecution.
1.331 For example, in the last two years in China, the SWA has been obliged to take
action against well over 200 brands of counterfeit Scotch Whisky. In each case it
has persuaded the enforcement authorities to take administrative action carrying
out a raid and seizing infringing stocks. However, the SWA has been lobbying
the Chinese Government for several years now to follow such administrative
action by criminal prosecution of offenders, as otherwise they will simply set up a
new plant in a new location. If the Chinese Government were to become aware,
and they would do so, that the Scotch Whisky Regulations did not apply any
criminal sanctions to those who misuse the description "Scotch Whisky", the
prospects of persuading them to apply criminal sanctions to counterfeiters in
China would be non-existent.
1.332 The SWA appreciates that the position in overseas countries would not normally
be regarded as being relevant in a consultation such as that being undertaken by
the Law Commission. However, the purpose of this review should take into
account the interests of the UK as a whole and hopefully it is clear from the
above examples that there would be a severe detriment to the UK were criminal
sanctions to be removed from the Scotch Whisky Regulations.
THE RANGE OF SANCTIONS AVAILABLE
1.333 The SWA entirely agrees with the findings of the Hampton Report that a range of
sanctions should be made available to enforcement authorities. Where a breach
of a regulation is accidental or minor, then it may be entirely appropriate for the
matter to be resolved by service of an improvement notice, which results in no
sanction whatsoever on the offender if the breach is remedied. In other
circumstances, it may be appropriate for an administrative penalty notice to be
served imposing a minor fine. However, in cases where there is a deliberate
breach of the SWR, or where significant profits are made through that breach, or
where the offender has breached the SWR on occasions before, then it is entirely
appropriate that criminal sanctions should be one of the remedies available to
enforcement authorities.
1.334 It is noted that, at paragraph 3.2 of the consultation, it is stated that criminal
sanctions are used too often where other remedies should be used. That,
however, relates to the choice of sanction by the enforcement official and does
not mean that a full range of sanctions should not be available. If it is the choice
of sanction adopted by the enforcement authority which is at fault, that problem
should not be remedied by removing the option of criminal sanctions; it should
be remedied by appropriate training or guidance of enforcement officials.
62