Criminal Liability in Regulatory Contexts Responses - Law ...

1.393 Local regulators already (ie prior to the implementation of the RES Act
provisions) have a range of tools available so that sanctions can be “stepped up”
at each stage. They will advise businesses, warn businesses, require
undertakings from businesses, etc. Where businesses resist, Trading Standards
Services (TSS) have civil sanctions available via the Enterprise Act 2002, where
orders in court can be obtained to require businesses to desist from particular
forms of conduct: both civil and criminal. Because this is applied to community
and specifically named domestic legislation, it allows criminal offences to be dealt
with via the civil process in the civil courts with rights of appeal. This offers the
regulator a range of options from which the most appropriate sanction can be
selected, including eventually taking criminal proceedings whether for the original
offence, or for contempt, or both. This process is wholly in line with the underlying
suggestions in this consultation paper, albeit it retains the criminal stick where
necessary.
1.394 The Consumer Protection from Unfair Trading Regulations 2008 (CPR’s) provide
an excellent recent example of how criminal provisions dovetail with the civil
processes found within the Enterprise Act. Regulators dealing with these
provisions are provided with a toolkit of sanctions that are suitable for dealing
with every type of 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 amounting to fraud. The mix of criminal and civil
sanctions allows the regulator to select the appropriate action for the activity
targeted. The Environmental Protection Act 1990 is similar, in that the notice
provisions, for instance for noise nuisance, provide a civil sanction for lesser noncompliance,
with a criminal offence in place for the most persistent or serious
breaches. The use of schemes like “Scores on Doors,” where premises liable to
inspection under the Food Safety Act receive a published "star rating" for their
performance in relation to food hygiene is persuasive in bringing businesses to
compliance as an alternative to traditional criminal sanctions. In the
environmental permitting regime under the Environmental Permitting (England
and Wales) Regulations 2010, if the risk ratings for the permit go up due to noncompliance,
the fees rise accordingly as does the frequency of intervention from
the regulator, such as more inspections. This pushes permit holders to get things
right, limiting the cost of the permit and the perceived inconvenience of
inspection. Local authority enforcement policies reflect the opportunity that these
powers offer.
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