Criminal Liability in Regulatory Contexts Responses - Law ...

1.472 Very often an either-way offence will be tried summarily, alternatively a
Prosecutor will decide to proceed with summary offences (as opposed to eitherway
offences) for reasons of ensuring that a case is not unnecessarily delayed.
Such considerations mean that cases which might otherwise have resulted in the
availability of an unlimited fine are, in practice, limited to fines available at
summary jurisdiction. Considerations of speed of due process is one of the
factors that a Prosecutor should have in mind: code 9.1 Speed must never be
the only reason for asking for a case to stay in the magistrates’ court. But
prosecutors should consider the effect of any likely delay if a case is committed
or sent to the Crown Court, and the possible effect on any victim or witness if the
case is delayed.
1.473 Evidence of repetition of wrongdoing is an important feature of criminal
proceedings. Bad character applications are routinely made in respect of
offenders who have been convicted of relevant offences. Bad character
applications may relate to non-criminal proceedings, however such applications
are hampered by the understandable reluctance of the criminal courts to be
involved in satellite litigation when deciding whether or not to allow evidence of
bad character to be adduced.
1.474 The difficulties presented by an inflexible approach are not difficult to imagine:
Offender A commits a regulatory offence; it is the sort of offence
whereby an offender could possibly expect to be imprisoned for a
second offence, and certainly expect it for a third offence. He is
prosecuted, and sentenced to a non-custodial penalty. He later
repeats the offending behaviour. This time he is not prosecuted for
the reasons adumbrated in Proposal 2, namely because the offence
does not merit custody for a first offence in non-extreme
circumstances (or because an unlimited fine is not available). He is
made the subject of a civil regulatory penalty. He later repeats the
offending behaviour for a third time. In criminal proceedings, he could
have expected to be imprisoned for a third offence. There is no
criminal offence available on account of Proposal 2.
1.475 Consider another scenario:
Offender A is convicted of the first offence, as described above, and
then is subject to a civil penalty in respect of repeat behaviour. If
Offender A is then prosecuted for a criminal offence in respect of a
third incident of like unlawful behaviour, the prosecutor may find
him/herself in the invidious position of being able to adduce evidence
of bad character in relation to the first conviction, but unable to
adduce evidence in relation to the second incident of wrongdoing on
account of the fact that the evidence relating to that second incident
had never been subjected to the criminal standard of proof.
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