Criminal Liability in Regulatory Contexts Responses - Law ...

1.421 The offences to which an individual could be susceptible under health and safety
law are wide ranging because the hazards the law addresses are varied.
Individuals may be subject to prosecution in their role as directors or senior
managers of companies, persons who did not commit the offence but caused the
offence, employees and the self employed. An individual could, justifiably, be
sent to prison for a first offence but to set this as the requirement of whether an
offence should be “criminal” is setting the hurdle too high in respect of all
offences. The difficulty we see in applying this principle is that, in some cases, a
prison sentence would be justified, whist in others it would not. That would
depend upon the culpability of the defendant and harm caused or risk posed. It
should also be borne in mind that health and safety cases are frequently taken
against companies.
1.422 We are unclear why the level of the fine makes the conduct a criminal offence.
Most health and safety offences are subject to an unlimited fine in the higher
courts. At Magistrates court the limit is £20,000. So, whilst in principle, we accept
that the seriousness with which an offence may be considered is reflected by the
maximum sum set within the sentencing regime, dependent upon the
circumstances of the case, a maximum of £20,000 may be sufficient in one case,
and wholly inadequate in another. The fines imposed for health and safety
breaches following the Buncefield fire and explosion totalled £4,. The fines
imposed on another company following major chemical fire totalled £150,000. At
Magistrates Court, a company was fined £1,000 plus costs for failing to carry out
risk assessments to determine the likely presence of asbestos during an office
refurbishment, thereby putting workers and contractors at risk. All three examples
are subject to an unlimited fine in the higher court but there will be circumstances
where the lower court has sufficient sentencing powers, and the Magistrates
decide to retain jurisdiction for sentencing.
Institute of Chartered Accountants of England and Wales (ICAEW)
1.423 These two proposals are drafted in terms of “wrongdoers” and “individuals” in a
way that suggests that they are aimed at natural persons, rather than businesses.
In that context we agree with the proposals. However, more consideration should
be given to the application of these provisions in relation to regulatory and
business crime.
1.424 The worst of regulatory or other legal provisions are those that are complex,
onerous and expensive as applied by honest and conscientious businesses, but
are ignored with impunity by those which are not. Such provisions are ineffective
in the regulatory protection that they are aimed at providing, while simultaneously
giving an unfair competitive advantage to those who are prepared to ignore them.
Nevertheless, regulatory provisions can be difficult and expensive to enforce and
despite the improvements introduced since the publication of Professor Macrory’s
Report and the passing of the Regulatory Enforcement and Sanctions Act we do
not anticipate a fast progression to universally logical, consistent and very firm
non-criminal enforcement of regulatory requirements. For this reason, we would
not support the wholesale removal of criminal offences, which have been put in
place to back non-criminal enforcement mechanisms, nor necessarily as
widespread a reduction of them as may be implied by this proposal.
84