Criminal Liability in Regulatory Contexts Responses - Law ...

The Institute of Employment Rights
1.376 We take issue with the characterisation of the relationship between ‘stigma’ and
the criminalisation of corporate offending assumed by the Law Commission in
this document. Corporate offending has never been treated in criminal law with
the same degree of opprobrium as have offences by individuals (nor, in most
cases, have the former attracted either social or political stigma). The reasons
for this are entirely related to the historical development of the criminal law which
has differentiated those offences. 1 We would therefore point out that it is the
mode of the law in which those offences are placed (inchoate and strict forms of
liability; differentiated enforcement mechanisms; and so on) that is significant in
ensuring that they do not attract the stigma that other, ‘mainstream’ criminal
offences attract. The question the Law Commission has raised, then, could be
usefully reversed: how might criminal law responses ensure that corporate
offenders are properly stigmatized? The importance of this question becomes
clearer in the context of recent, empirical evidence on health and safety
enforcement, below.
Kiron Reid, Liverpool Law School
1.377 Agree; this should be the starting presumption for both businesses and
individuals. Some examples discussed in the paper about animal welfare, child
safety, or trading with dictatorial regimes like Burma may pass this test initially.
Food Standards Agency
1.378 Criminal law isn’t primary means of promoting regulatory reform in food sector
although can be effective. Hierarchical approach to compliance and enforcement:
enforcement officers normally start with informal advice; moving up the noncriminal
sanctions; only serious cases are put before courts. There are other
enforcement mechanisms and sentencing is properly a matter for the courts on a
case-by-case basis. Because FSA focuses on risk rather than outcome, risktaking
(deliberate or through incompetence) can itself amount to seriously
reprehensible conduct, even if no harm results. Persistent low-level risk-taking is
also seriously reprehensible. Therefore proposals indicate a black-and-white
certainty that gives the wrong picture.
Association of Chief Trading Standards Officers (ACTSO)
1.379 Strongly believe this proposal would undermine consumer protection and lead to
lower levels of compliance with regulatory law. Any attempt to define conduct that
would constitute “serious reprehensible conduct” would be complex to draft and
would lead to greater uncertainty. How would businesses’ previous conduct or
other regulatory requirements be taken into account? How would wider societal
impacts be considered eg consequences of allowing illegal sales of cigarettes or
alcohol?
1
Wells, C. (2001) Corporations and Criminal Responsibility. Second Edition. Oxford: Clarendon; Norrie, A.
(2001) Crime, Reason and History: a critical introduction to criminal law, 2nd ed. London: Butterworths.
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