Criminal Liability in Regulatory Contexts Responses - Law ...

1.399 At what stage does reprehensible conduct become seriously reprehensible? Is
repeated infringement of a regulatory obligation reprehensible (and, if so, how
many repetitions are to be permitted before it becomes seriously reprehensible?
I agree with the principles behind the proposal but feel that it requires to be
redrawn.
Food Law Group
1.400 Proposal reflects the expressed enforcement policy of local authorities in the UK.
The Group supports the Proposal, although comments that this Proposal could
address both the way the criminal law is formulated and the way that it is applied.
Our view is that it is important to distinguish proposed changes in the criminal law
from proposed changes in enforcement practice. Changing the latter is easier
than changing the former. Furthermore, the notions of “seriousness” and
“reprehensibility” are very subjective. In particular, they are sectoral in their
application. Thus a person concerned with applying requirements of food
labelling might regard the sale by a major supermarket of food after a use-by date
as serious whereas a criminal lawyer might not. 2 Between those two positions are
the spectrum of opinions of due diligence experts, microbiologists and
defendants.
1.401 The Group’s view was that taking criminal prosecutions should be linked to the
harm done. Conduct or omissions should be criminalised only when there is
actual serious physical or economic harm or an unacceptable risk of such harm.
The Group’s view is that in many cases breach of a regulatory requirement
(including sale past a “use by date”) results in economic rather than physical
harm and at a very low level. This sort of offence could easily be dealt with by
civil means but frequently it is not.
1.402 Overall, we considered that where food law offences involved the type of ‘higherlevel
fault requirements such as dishonesty, intention, knowledge or
recklessness’ referred to at CP 4.61 it was difficult to envisage conduct in this
context which would not fall under another provision of the criminal law.
CBI
1.403 Strongly agree. What is meant by “seriously reprehensible conduct” will require
some further elaboration or definition, if that becomes the test. This should also
require a test of knowledge, intent or recklessness in the conduct of the person
complained of.
East of England Trading Standards Association
1.404 Superficially, this proposal appears attractive, however there it does not elaborate
on what would be considered to be “seriously reprehensible conduct”. Without an
indication of what is meant here, it is not possible to give a fully reasoned
response to this proposal.
2
It should be noted that there is a separate and more serious offence of selling unsafe food within the
meaning of Article 14 of Regulation (EC) No. 178/2002 under section 8 of the Food Safety Act 1990.
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