Criminal Liability in Regulatory Contexts Responses - Law ...

PROPOSAL 1
QEB Hollis Whiteman Chambers, Justices’ Clerks’ Society, Care Quality
Commission (CQC), Food and Drink Federation
1.342 Agree / support
Clifford Chance
1.343 Only serious reprehensible conduct should be tried in criminal courts (intention or
at least recklessness). Sceptical as to whether it is correct to say that all criminal
convictions necessarily carry a greater degree of stigma than other forms of
censure (quoting Macrory at p16: “criminal convictions for regulatory noncompliance
have lost their stigma”). Stigma more likely to attach to particular
conduct rather than criminal conviction – criminal law may already have been
over-used and resulted in diminution of the stigma (eg Public Procurement
Regulations 2006 only treat as ineligible for public contracts those who have
committed certain criminal offences, not all criminal offences.) Criminal law
should not be used as primary means to promote regulatory objectives. Penal
measures are a blunt and old-fashioned instrument inappropriate for much of the
mass of complex laws that can be categorised as regulatory. It shouldn’t be the
primary role of a regulator to impose penalties whether to appear strong, to court
favourable publicity or to avoid unfavourable comparisons with overseas
regulators. Role of regulators should be educate, encourage and warn. Penalties
should be last resort for persistent offenders (although accept that regulators
should generally seek to eliminate any financial gain made from unlawful conduct
insofar as that gain is not required to be paid by way of compensation to those
who have suffered loss.)
The Law Society
1.344 We agree with this as a general proposition. We have long been concerned with
the creep of the criminal law as a method of promoting regulatory objectives. We
agree that the criminal law should only deal with those wrong-doers who properly
deserve the stigma associated with a criminal conviction and the consequences
which flow from this, because they have engaged in seriously reprehensible
conduct. We believe also that it is not always necessary to use criminal law as
the sanction for failure to meet a requirement imposed by a European Directive or
Regulation.
OFT
1.345 We note the preference in the consultation for the use of non criminal measures,
specifically a civil penalties regime such as that introduced by the RESA. We
support the introduction of civil penalties to be available alongside powers of
prosecution. (It should be noted that the civil penalties regime, as it currently
exists, is dependent on the existence of underlying criminal offences as is the
availability of such sanctions). These powers are not a complete substitute for
criminal sanctions and should not be introduced as such.
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