Criminal Liability in Regulatory Contexts Responses - Law ...

Local Government Regulation (LGR)
1.360 LG Regulation broadly welcomes proposals to provide regulators with a wider
choice of means to achieve compliance with regulatory law through the addition
of civil law sanctions. As local regulators we already persuaded that civil
sanctions can be a very effective method to deliver regulatory objectives in many
cases. This is certainly the case where, if there is a business involved, it is willing
to comply, and often the case where the business is reluctant to comply but
susceptible to persuasion in the form of public reprimand or by way of private
financial or other penalties. Therefore superficially, this proposal appears
attractive. However amongst other things, it does not elaborate on what would be
considered to be “seriously reprehensible conduct”. Without an indication of what
is meant here, it is difficult to give a fully reasoned response to this proposal. It
also does not address the issue of what sanctions would be available for those
who refuse to comply with a notice or a fixed penalty request. This would we
assume place them firmly back into the realms of criminal offences? Therefore
there needs to be a clear and unequivocal link with this being a two stage
process, the first civil and administrative, the second, criminal with the accordant
sanctions.
1.361 It also ignores the place that prosecution has within the regulatory tool kit and the
context in which offences may be committed. For example if minor offences were
de-criminalised and hence the stigma of a criminal conviction removed, a person
or business may consider that it would be more cost effective to continue to
offend albeit in a minor way and pay the administrative penalties resulting rather
than to change their conduct to avoid offending. This would then effectively
become a cost of doing business. This may well have the effect of undermining
consumer protection and lead to lower levels of compliance with regulatory law.
How would a business’s previous conduct in respect of this or other regulatory
requirements be taken into account? How would wider societal impacts be
considered when identifying ‘seriously reprehensible conduct’, for example the
consequences of allowing illegal sales of cigarettes or alcohol?
1.362 It further fails to take account of the fact that some offending such as the sale of
counterfeit goods can generate significant financial gain for the offender which
Trading Standards Authorities would look to recover under the Proceeds of Crime
Act 2002. If these types of offending were caught in the above definition and decriminalised
then recovery of these monies would no longer be possible. For
example a market trader who was convicted of selling items of counterfeit
clothing who received a sentence of 100 hours unpaid work in the community, yet
in the associated proceedings under the Proceeds of Crime Act 2002, was given
a confiscation order in excess of £600,000.
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