Criminal Liability in Regulatory Contexts Responses - Law ...

Both factors are relevant to a consideration of many of the proposals.
In the context of the second part of proposal 1, they underpin the
importance of criminal prosecution as a means of promoting the
objectives of some regulatory regimes, particularly health and safety
and environmental.
Only employing the criminal law to deal with wrongdoers who deserve
the stigma associated with criminal conviction because they have
engaged in seriously reprehensible conduct: the response to the first
part of proposal 1 depends upon what is encompassed by the term
“seriously reprehensible conduct‟. If it is limited to what the CP
describes as “higher-level fault requirements such as dishonesty,
intention, knowledge or recklessness” then there is a powerful
argument that this fails to have sufficient regard to the “stigma”
associated with “wrongdoing” involving failure to comply with
standards imposed by certain duties and by failure to comply with
certain permissioning and licensing regimes (principally the duties
and permissioning/licensing regimes relating to health and safety and
environmental protection).
PROPOSAL 2
Clifford Chance
1.419 Approach begs the question of what is serious enough. Circular: an individual can
imprisoned for a first offence because his conduct is seriously reprehensible;
because he can be sent to prison for a first offence, his conduct is seriously
reprehensible. May also carry with it the risk of inflation in penalties – if it is
desired that a particular offence should come before the criminal courts, the
penalty will be increased to this level in order to meet the test. Harm done
shouldn’t be the only test. Significant harm can be caused by strict liability
offences. For an offence to merit trial in criminal courts, it should involve intention
or recklessness. If regulatory offence is one of strict liability, rarely, if ever, be
appropriate for it to come before the traditional criminal courts no matter the harm
caused.
HSE
1.420 Breaches of health and safety regulations are offences under s33 HSWA. The
Health and Safety Offences Act 2008 amended the penalties for offences
committed on or after 16 January 2009. Most contraventions are subject to a
maximum penalty of £20,000 fine and/or up to 6 months imprisonment in the
lower courts and in the higher courts, an unlimited fine and/or 2 years
imprisonment.
83