Criminal Liability in Regulatory Contexts Responses - Law ...

1.346 The civil sanctions regime for consumer protection offences is untested and is
intended to be piloted from April 2011 (the pilot is expected to empower the OFT
and around 10 Trading Standards Departments and the Consumer Protection
from Unfair Trading Regulations [CPRs] will be included within he legislation to
be tested). As a result, we think it is inappropriate to pre-judge the results of this
pilot by, for example, assuming these powers can effectively remove the need for
criminal sanctions altogether. In fact the pilot as it is framed relies upon the
continued existence of criminal sanctions to be used appropriately to complement
and enhance the operation of the civil sanctions regime. Removal of criminal
penalties ahead of the pilot of civil sanctions would be premature and risky.
RSPCA
1.347 In certain commercial situations and in a regulatory context, it may be appropriate
to take the civil sanctions route first and foremost, however in relation to offences
relating to animals under the AWA (the statute mainly used for prosecutions by
the RSPCA) the primary enforcement mechanism should remain the criminal
justice system. Such offences are unacceptable in a civilised society and a
criminal conviction carries a stigma and a deterrent effect, which a civil sanction
would not.
HSE
1.348 Heath and Safety legislation aims to regulate the activities of those who create
risks, either through goal setting legislation under the HSWA or by prescribing
specific steps that must be taken, as within certain Regulations. Duties are
placed on those who are in a position to control the risks – employers, those in
control of business premises, suppliers of substance and equipment, the self
employed and workers. The general duties under HSWA apply to all workplaces.
Regulations may be sector specific such as the Control of Major Accident
Hazards or address a hazard across several sectors of activity, for example,
working at height. They include risk to the public, for example, from poor
standards of domestic gas installation in domestic premises, or failure to ensure
gas appliances in rented accommodation receive a regular inspection b a
competent person.
1.349 In considering what may be criminal conduct, we would argue that Health and
Safety law meets the ‘stigma’ test. As the sentencing guidelines for Corporate
Manslaughter and Health and Safety Offences causing Death explain, health and
Safety offences ‘embrace a very wide spread of culpability from the minimal to
the very grave’. There are factors that affect the seriousness of the offence
including how foreseeable was the injury and how far short of the applicable
standard the defendant fell as well as factors that aggravate and mitigate any
offence. The consequences of error may be severe, for example, where
management of nuclear installations or onshore chemical plants are concerned.
In our view, it is seriously reprehensible conduct to put lives at risk, or allow a
situation to arise that may result in serious harm to people’s health or safety,
whether those likely to be affected are the public or employees. This would apply
where the consequences of wrongdoing may be potential or actual, and meets
the test given at CP 4.25.
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