Criminal Liability in Regulatory Contexts Responses - Law ...

1.363 Perhaps even more critically, it should be recognised that not all traders operate
from fixed base and / or are easy to trace. We have significant concerns that a
number of “itinerant” businesses may well be engaged in commercial fraud. It is
hard to see how legislation which is intended to address such activities, which
should be in criminal terms, could be written to avoid creating similar offences for
any trader that breached them. Whilst it can be argued (and indeed the
consultation paper does so) that such activity can be caught by the Fraud Act, we
have serious reservations about the sole use of this legislation. We consider that
the sort of traders that we see on programmes like “Rogue Traders” – the here
today and gone tomorrow traders – need specific criminal sanctions not only
because they are appropriate to the “rip off” activities they undertake, but also
because the whole infrastructure that supports practical investigative work, is
geared to criminal offences. Data Protection Act exemptions, access to tracing
telephone numbers (and incidentally controls on the potential excess of the
investigation activities by local regulators in phone number tracing or surveillance
operations, under RIPA) – none of these apply to “civil sanctions” investigations.
1.364 When considering whether to prosecute for offences there are already a number
of checks and balances employed by Local Authorities. For example they will
have regard to the Code for Crown Prosecutors and in particular apply the public
interest test when considering prosecution. They will also have to have regard to
their own published Enforcement Policies. We are not aware of any evidence that
Local Authorities are misusing their ability to bring criminal proceedings for
regulatory offences.
1.365 The regulatory framework in which Trading Standards enforcement staff operate
has seen developments over the course of the past decade, with the introduction
of the Enterprise Act 2002 and the more recent framework being proposed by the
provisions contained within the Regulatory Enforcement and Sanctions Act 2008,
or Consumer Protection From Unfair Trading Regulations (CPR’s), which operate
in conjunction with the Enterprise Act. These Regulations again provide a toolkit
of sanctions, to deal with every trader from the small corner shop, to a large
manufacturer or supermarket chain, and even those who use the business model
as a means of conducting criminal activity which amounts to fraud. There is again
a mix of criminal and civil sanctions so the regulator can select the appropriate
action for the activity. Enforcement policies reflect these powers. These
measures provide trading standards enforcers with a range of formal sanctions
covering both criminal offences and civil remedies to address past, present and
future conduct. From looking at even just a few enforcement policies of Local
Authorities it can be seen that far from the impression given in the paper that
criminal prosecution is regarded as the primary means of promoting regulatory
objectives it is clearly evident that this is not the case.
1.366 To illustrate, the following is an extract from the published enforcement policy of
one County Council Trading Standards Service: “We always strive to use advice
as the main method of ensuring that businesses comply with legal requirements.
We will inspect business premises, test products, and make test purchases
where appropriate; give talks to consumer and business groups, and publish a
range of leaflets.”
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