Criminal Liability in Regulatory Contexts Responses - Law ...

1.466 In every criminal case, the Code requires the Crown Prosecutor to apply the
public interest test. If there is a sufficient regulatory disposal, the situation
already in place is that that will tend to militate against the need for a prosecution
– code 4.17(c) provides that A prosecution is less likely to be required if the
suspect has been subject to any appropriate regulatory proceedings, or any
punitive or relevant civil penalty which remains in place or which has been
satisfactorily discharged, which adequately addresses the seriousness of the
offending and any breach of trust involved.
1.467 In instances involving offences that are routinely committed by organisations, as
opposed to by individuals, the justification of an individual being sent to prison for
a first offence (in some non-extreme circumstances) is, as a test, of little use as a
means of determining whether criminalisation is appropriate.
1.468 The availability of an unlimited fine, as opposed to a (maximum) determinate fine,
is very often a matter of drafting technique. If an offence provides for a fine of up
to £20,000 or more, is that offence less serious than an offence where there is a
notional possibility of an unlimited fine but where in reality the offence in question
is invariably tried summarily and where the fines imposed are in practice
significantly less than £20,000?
1.469 There are many offences that will not justify imprisonment for a first offence in
non-extreme circumstances, but will warrant imprisonment for repeated offences.
Are those offences to be ignored for the purposes of determining whether harm
done or risked is serious enough to warrant criminalisation?
1.470 There are many offences that will not justify imprisonment for a first offence in
non-extreme circumstances, but will warrant a court order. Indeed, one of the
requirements of the Code for Crown Prosecutors is (code 6.1(b)) that Prosecutors
should select charges which give the court adequate powers to sentence and
impose appropriate post-conviction orders. For this reason, the code provides
(code 6.2) that This means that prosecutors may not always choose or continue
with the most serious charge where there is a choice.
1.471 One consideration that may be relevant is the question of Proceeds of Crime.
Convictions may be important for this issue. POCA proceedings may involve
very substantial sums of money. They may involve questions of compensation
for victims. These considerations may be lost if an arbitrary test of the availability
of an “unlimited fine” is imposed. In addition to confiscation and compensation
orders, the Prosecutor is required (code 11.4) to consider applying for ancillary
orders in all appropriate cases.
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