Scrap low-level criminal offences in regulatory fields, says Law Commission

Low-level criminal offences in the regulatory arena should be scrapped and a greater emphasis placed on civil sanctions, the Law Commission argued this week.

Unveiling a consultation paper on the issue, the Law Commission said it was “out of proportion” for regulators to rely wholly on the criminal law to punish and deter activities that are merely ‘risky’ unless the risk involved is a serious one.

The government’s legal advisory body outlined the case for reducing the scope of criminal law in areas such as farming, food safety, banking and retail sales. It highlighted a “steep increase” in the number of criminal offences created since the late 1980s to penalise risk-taking, and a growth in the number of agencies with powers to make criminal laws.

The consultation paper proposes that:

• regulatory authorities should make more use of civil measures such as ‘stop’ notices, enforcement undertakings and civil penalties
• a set of common principles should be established to “to help agencies consider when and how to use the criminal law to tackle serious wrongdoing”. These guidelines would help law-makers across Whitehall.
• petty criminal offences should be repealed where civil penalties could be just as effective
• where criminal offences are created in regulatory contexts, they should require proof of fault elements such as intention, knowledge or a failure to take steps to avoid harm being done or serious risks posed. “Businesses and individuals should generally not be penalised by the criminal law if they have made real efforts to comply with laws requiring, say, the provision of information”.

As part of the project, the Law Commission will examine whether a number of doctrines of liability applicable to companies and unincorporated associations are in fact unfair to such bodies, in particular whether they are unfair to small businesses. The legal advisory body will look specifically at the doctrine of delegation and the doctrine of ‘consent and connivance’.

The Law Commission will also analyse the interpretation by the courts of offences in the regulatory or public interest context. As part of this it will examine the application of the ‘identification’ doctrine and the possibility of giving courts the power to apply a due diligence defence when interpreting the scope of the statutory offence.

Up to £11m a year could be saved if regulators used civil penalties for minor breaches, the Law Commission claimed.

Professor Jeremy Horder, the Law Commissioner in charge of the project, said: “Relying on the criminal law to deter and punish risky behaviour in regulatory contexts may be an expensive, uncertain and ineffective strategy. Civil penalties are quicker and cheaper to enforce but they are not a soft option. People who breach regulations will often discover that civil fines can be higher than the penalties imposed by the courts.

“The Commission believes that a principled criminal law should be used by regulators to target only the most serious cases of unacceptable risk-taking.”

The deadline for responses is 25 November 2010.  A copy of the consultation paper can be downloaded here.