CRIMINAL LIABILITY IN REGULATORY CONTEXTS

1 The Law Commission Consultation Paper No 195 CRIMINAL LIABILITY IN REGULATORY CONTEXTS A Consultation Paper ii iiiTHE LAW COMMISSION HOW WE CONSULT About the Law Commission The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor Jeremy Horder and Miss Frances Patterson QC. The Chief Executive is: Mr Mark Ormerod CB. Address for correspondence: Steel House, 11 Tothill Street, London SW1H 9LJ.

2 Topic of this consultation This consultation paper deals with the use of the CRIMINAL law in REGULATORY CONTEXTS , and with some aspects of corporate CRIMINAL LIABILITY . A summary of the main points can be found in Part 1. Scope of this consultation The purpose of this consultation is to generate responses to our provisional proposals. Geographical scope The contents of this consultation paper refer to the law of England and Wales. Impact assessment An impact assessment is included. Previous engagement N/A. Duration of the consultation We invite responses to our provisional proposals and questions from 25 August 2010 to 25 November 2010.

3 After the consultation In the light of the responses we receive, we will decide our final recommendations and we will present them to Parliament. We hope to publish our report by Spring 2012. It will be for Parliament to decide whether to approve any changes to the law. Code of Practice We are a signatory to the Government s Code of Practice on Consultation and carry out our consultations in accordance with the Code criteria (set out on the next page). Freedom of information We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents' names in any final report we publish.

4 If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE We will disregard automatic confidentiality statements generated by an IT system. Availability of this consultation paper You can view/download it free of charge on our website at: How to respond Send your responses either By email to: OR By post to: address above. Tel: 020-3334-0271 / Fax: 020-3334-0201 If you send your comments by post, it would be helpful if, whenever possible, you could send them to us electronically as well (for example, on CD or by email to the above address, in any commonly used format).

5 IvCODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals.

6 Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience.

7 CONSULTATION CO-ORDINATOR The Law Commission s Consultation Co-ordinator is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Email: Full details of the Government s Code of Practice on Consultation are available on the BIS website at v THE LAW COMMISSION CRIMINAL LIABILITY IN REGULATORY CONTEXTS CONTENTS Paragraph Page PART 1.

8 REGULATION, BUSINESSES AND CRIMINAL LIABILITY 1 Our terms of reference 1 What our terms of reference mean for this project 2 The origins of the project 2 Regulation and CRIMINAL LIABILITY 3 The background to the main part of the project 5 Increasing numbers of CRIMINAL offences 5 Bureaucratic bodies and CRIMINAL law-making 5 CRIMINAL laws created, but then little used 7 Our provisional proposals and questions 8 General principles: the limits of criminalisation 8 General principles: avoiding pointless overlaps between offences 10 General principles: structure and process 11 General principles: fault in offences supporting a REGULATORY structure 13 Doctrines of CRIMINAL LIABILITY applicable to businesses 14 The doctrine of identification 14 A general defence of due diligence 15 The consent and connivance doctrine 17 The delegation doctrine 18 PART 2.

9 REGULATION AND PUBLIC INTEREST OFFENCES 20 CRIMINAL law and regulation 20 The role of public interest offences 20 Regulation and public interest offences 20 Comparing driving and car ownership, and cycling and bicycle ownership 22 The example of knife crime 25 Conclusion on public interest offences 26 vi Paragraph Page PART 3: CRIMINAL WRONGDOING AND REGULATION 27 Introduction: is there simply too much CRIMINAL law? 27 Our approach in brief 27 Two quick fixes assessed 29 Is it simply a question of numbers?

10 29 A general category of administrative offence? 31 Against a general administrative offence regime 32 CRIMINAL proceedings and REGULATORY law 35 A procedural understanding of CRIMINAL offences 35 Should CRIMINAL offences and REGULATORY offences be distinguished? 36 The use of the CRIMINAL law in REGULATORY CONTEXTS 39 context 1: truancy and the Education Act 1996 39 The REGULATORY element 39 The statutory offences 40 The relationship of the REGULATORY element to the statutory offences 42 Our analysis 43 context 2: illegal use of migrant workers 44 The traditional single offence approach 44 The modified approach 45 Our analysis 46 context 3.