Criminal Liability in Regulatory Contexts Responses - Law ...

1.460 For my part, I struggle to see how either the imposition of a prison sentence or
the availability of an unlimited fine for a first offence could, in the current climate,
be considered to be an appropriate or helpful determining criteria. Drink driving
is an offence that would most likely fall within this bracket if it was deemed to be a
regulatory offence: an individual is only likely to be sent to prison for a first
offence in extreme circumstances; an unlimited fine is not available; the public
interest nevertheless dictates not only that is a criminal offence, but also that is
an offence that is always pursued to prosecution where there is sufficient
evidence. Furthermore, it is an offence where the ancillary orders (e.g.
disqualification, drink-driving rehabilitation courses), and the ability of the criminal
courts to enforce compliance with those orders are seen as an essential element
of the regime for controlling and deterring unlawful behaviour of this type.
1.461 The new Home Secretary has very publicly directed magistrates & judges to look
to community sentences as appropriate alternatives to custody, and with the
announcement on 20 th October 2010 that the jail population is to be reduced by
3,000 over the next 4 years, the emphasis for the courts will increasingly be that
serious offences do not necessarily call for custodial sentences.
1.462 The Sentencing Guidelines Council has published definitive guidelines for a
multitude of offences, including serious offences, where the starting point after a
trial, is a community order – these (non-regulatory) offences include offences that
are unquestionably serious and in the public interest to be prosecuted, for
example: theft in breach of trust of sums up to £2000, or theft in a dwelling
house, or theft from the person, or theft from a shop accompanied by some
intimidation or threats or an element of pre-planning or damage, or burglary of
commercial premises. An unlimited fine for any of these offences does not, in a
practical sense, seem to me to be much of a guiding benchmark.
1.463 The availability of an unlimited fine, as opposed to a determinate maximum fine is
an artificial distinction without a meaningful rationale.
1.464 If one looks to the Code for Crown Prosecutors, it is readily apparent that the
interests of justice are the ultimate criteria to be applied. Decisions are made in
accordance with the Code and the DPP’s Guidance on Charging. Similarly, the
police apply the same principles in deciding whether to charge or summons a
person in those cases for which the police are responsible. The Full Code test
has two stages: (i) the evidential stage; followed by (ii) the public interest stage.
The potential sentencing outcome is one possible consideration, however the
Code does not advocate an inflexible approach: Code 4.16(a) A prosecution is
more likely to be required if a conviction is likely to result in a significant
sentence [emphasis added]. Similarly, and conversely, code 4.17(a) provides
that A prosecution is less likely to be required if a court is likely to impose a
nominal penalty.
1.465 The fact that a criminal sanction is available may of itself be a significant
deterrent. It may also serve as a useful means of facilitating agreement between
the parties that compliance with regulatory proceedings, and/or discharging a civil
penalty, are measures that merit serious consideration. If there is no potential for
criminal proceedings in the background, then there may be less incentive to
engage with the regulatory process or to discharge a civil penalty.
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