Criminal Liability in Regulatory Contexts Responses - Law ...

Local Government Regulation (LGR)
1.480 The intention of this proposal is to de-criminalise much of current regulatory law.
If this proposal were to be accepted then a significant number of regulatory
infringements would be de-criminalised. We consider that this is unworkable
within these definitions. Members of the public would lose faith with the Criminal
Justice System, as this would result in taking justice out of the Courts and into
prosecutor’s hands. Members of the public firmly believe in the idea that ‘justice
has to be done and seen to be done’. We consider that any ‘public interest test’
would be nullified if it is penalty driven.
1.481 For example where there is an under age sales related contravention, if trading
standards issue a notice then there is an associated fine. If they do not pay then
it becomes a civil matter to chase the debt, but then if there are additional
offences then presumably the non payment would not be mentionable in Criminal
Courts as it was a civil debt? Therefore on what objective grounds would an
authority justify the prosecution? We are supportive of the principle of fixed
penalty notices, but Authorities need to have discretion to make decisions and to
apply well established principles of reasonableness. Likewise for food hygiene
cases where food has been produced on a large scale it has been necessary to
use conspiracy to defraud powers and enforcement by the Crown Prosecution
Service as food hygiene sanctions have been inadequate for the seriousness of
the crime and the resultant harm to human health. It may also be
disproportionately unfair on individuals as opposed to companies where the
breach of law is not in doubt, but the resulting fine to be paid as a consequence is
related to ability to pay and size of the enterprise.
1.482 Equally it is unclear whether this proposal also applies to either way matters for
which the penalty in the Magistrates Court only attracts a limited fine yet attracts
an unlimited fine in the Crown Court. The Law Commission needs to consider the
impact of de-criminalisation of legislation on the ability of Local Authorities to
function within the law enforcement community. Information exchange, and
information gathering for the purposes of investigations of breaches of legislation,
frequently relies on gateways which exist for the purpose of the ‘investigation or
detection of crime’ or similar. Therefore, de-criminalisation of some legislation
may make the investigation of that breach harder, resulting in breaches
remaining unaddressed. The effect on consumer confidence in the market place
is hard to determine but is unlikely to be positive.
1.483 It is unlikely that civil sanctions alone would provide a sufficient incentive for large
businesses to prioritise compliance with regulatory law. This coupled with the
difficulty and cost of pursuing civil claims could result in many breaches of
consumer protection legislation remaining unaddressed as a consequence. 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
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