Criminal Liability in Regulatory Contexts Responses - Law ...

1.442 There are also issues that would arise with enforcement powers of investigation
and forfeiture of assets gained from crime if the criminal penalty was removed.
Such proposals may also affect the ability to conduct surveillance under
Regulation of Investigatory Powers legislation.
QEB Hollis Whiteman Chambers
1.443 Disagree. The test is artificially high. There are offences that are sufficiently
serious to warrant the stigma of being described as criminal and call for a
reasonably serious sanction (eg community penalty) which is, in itself, a serious
measure.
Financial Services and Markets Legislation City Liaison Group
1.444 We do not support this proposal as we do not believe that seriousness should be
determined based on the penalties that could be imposed.
1.445 Instead, we believe that the test should consider knowledge and intention and the
degree of seriousness of the harm caused (c.f. the factors in paragraph 12.8 of
the FSA’s Enforcement Guide, referred to above, re the use of criminal/regulatory
powers in market abuse cases).
1.446 Certainly, where there is uncertainty, such that a company or individual is unable
to determine whether or not a course of action would amount to an offence but is
seeking in good faith to comply with the law, we do not believe that
criminalisation is appropriate.
Trading Standards South East Ltd
1.447 TSSE disagrees with this proposal. Clear enforcement policies, the Statutory
Code of Practice for Regulators, the Crown Prosecution Service Guidelines and
Sentencing Guidelines all serve as indications as to when criminal prosecution is
an appropriate sanction. To remove categories of offences from the criminal
prosecution regime, simply based upon the penalty that could be attracted, does
not in our view address the issue of determining which sanction is appropriate for
any particular offender.
OFT
1.448 We note the preference in the consultation for the use of non criminal measures,
specifically a civil penalties regime such as that introduced by the RESA. We
support the introduction of civil penalties to be available alongside powers of
prosecution. (It should be noted that the civil penalties regime, as it currently
exists, is dependent on the existence of underlying criminal offences as is the
availability of such sanctions). These powers are not a complete substitute for
criminal sanctions and should not be introduced as such.
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