Government agencies could seek alternatives to criminal prosecutions

25 August 2010

The number of criminal offences used by government departments and agencies could be reduced, according to the Law Commission.

In a consultation launched today, the Commission sets out the case for reducing the scope for criminal law to be used in regulated fields such as farming, food safety, banking and retail sales. Criminal sanctions should only be used to tackle serious wrongdoing. The Commission argues it is out of proportion for regulators to rely wholly on the criminal law to punish and deter activities that are merely 'risky', in that they have the potential to lead to harm, unless the risk involved is a serious one.

There has been a steep increase in the number of criminal offences created since the late 1980s to penalise risk-taking, and many more agencies have been set up with the power to make criminal laws of that kind. The areas regulated by these agencies cover a wide range of risk-posing activities, and involve millions of people and thousands of businesses.

By turning to civil penalties for minor breaches, regulators could reduce costs to themselves and the criminal justice system by £11 million a year. In some cases, criminal prosecution can cost almost twice what the courts obtain in fines: prosecutions under section 8 of the Asylum and Immigration Act 1996, for example, have cost as much as £2,000 but can produce fines of less than £1,000. Civil penalties may also be fairer to individuals and businesses targeted, in that they involve less uncertainty and delay.

The Commission's paper, Criminal Liability in Regulatory Contexts, proposes that:

• regulatory authorities should make more use of cost-effective, efficient and fairer civil measures to govern standards of behaviour, such as 'stop' notices, enforcement undertakings and fixed penalties

• a set of common principles should be established to help agencies consider when and how to use the criminal law to tackle serious wrongdoing, and

• existing low-level criminal offences should be repealed where civil penalties could be as effective.

The Commission proposes that, 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.

Professor Jeremy Horder, the Law Commissioner leading 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 Commission seeks responses by 25 November 2010. The paper, Criminal Liability in Regulatory Contexts, is available on the Law Commission's website at:

www.lawcom.gov.uk/regulation_liability.htm.

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