Criminal liability in regulatory contexts

Book excerpt: In this consultation paper, the Law 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 and it is 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. There has been a steep increase in the number of criminal offences created since the late 1980s to penalise risk-taking. The areas regulated 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. The paper proposes that: (i) regulatory authorities should make more use of cost-effective, efficient and fairer civil measures to govern standards of behaviour; (ii) 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and how to use the criminal law to tackle serious wrongdoing, and (iii) existing low-level criminal offences should be repealed where civil penalties could be as effective.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.