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Criminal Liability in Regulatory Contexts: Responses

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Criminal Liability in Regulatory Contexts: Responses CRIMINAL LIABILITY IN REGULATORY CONTEXTS: RESPONSES GENERAL COMMENTS RSPCA 1.1 Particular interest in the proposals because of RSPCA’s role as private prosecutor as opposed to a “regulator” for offences relating to animal welfare. The RSPCA undertakes prosecutions in furtherance of its charitable objects which are “to promote kindness and to prevent or suppress cruelty to animals and to do all such lawful acts as the Society may consider to be conducive or incidental to the attainment of those objects” (s4, RSPCA Act 1932). The Society has strived to achieve these aims since its inception and since the 1822 Act to prevent the cruel and improper treatment of cattle, cruelty to animals has been firmly enshrined in the criminal law. It would be a backward step for animal welfare should this regime change. 1.2 In 2009, the RSPCA secured 2,579 convictions for offences relating to animals. Prosecutions were primarily brought under the Animal Welfare Act 2006 (“AWA”), other relevant legislation included the Wildlife and Countryside Act 2008 and the Wild Mammals (Protection) Act 1996. The Society is anxious to ensure that the existing enforcement work that it undertakes in conjunction with the police and CPS is not compromised by the proposals contained in the Consultation document. 1.3 The RSPCA also consider that the power to impose a system of civil sanctions already enacted in the Regulatory Enforcement Sanctions Act 2008 and introduced in the Environmental Sanctions Order 2010 should not be extended beyond environmental offences (which was the intended ambit of these pieces of legislation) onto the AWA. Prosecutions concerning sentient beings are in a different category to other types of prosecutions. Offences under the AWA should remain criminal offences without the introduction of a system of civil sanctions. OFT 1.4 In order to better achieve its objectives, and in accordance with the principles and duties set out in the Legislative and Regulatory Reform Act 2006 (LRRA) (s21 requires regard to be had in the performance of regulatory functions to the need for transparency, accountability, proportionality, consistency and targeting), the Regulators' Compliance Code, and Part 4 of the Regulatory Enforcement and Sanctions Act 2008 (RESA) (see s72), the OFT has adopted policies which govern how it undertakes regulatory enforcement action. The OFT operates a case by case approach to investigations applying prioritisation principles.11 Relevant considerations when determining whether to use civil or criminal mechanisms will include issues such as the extent and seriousness of consumer detriment and the likely impact for consumers of the chosen route. The OFT has a specific policy on criminal enforcement of the CPRs which is applied to all cases under those Regulations. In general terms criminal enforcement is depicted as being at the summit of the enforcement pyramid, taken, other than in exceptional cases, only after exhausting other options. 1 1.5 We note that the consultation document proposes, particularly in the field of consumer protection, that criminal sanctions in regulatory cases should be used as a follow on process where there has been a failure to comply with civil sanctions. As outlined above, it is OFT policy that prosecution is used where it is proportionate and appropriate, for example because of the seriousness of the detriment caused to consumers and where other types of intervention are unlikely to be effective. Making prosecution possible only as the final stage in a rigid procedural hierarchy to be in place under all circumstances is undesirable. Such a change would result in the loss of a deterrent which we consider has a very real effect on the level of detriment that may be experienced by consumers (Criminal Law and Business Practice: Drivers of compliance and non-compliance (OFT1225) June 2010). Our concern is that all or most breaches of the law that we and partner authorities enforce can sometimes demand prompt use of criminal sanctions. Most kinds of regulatory breach are capable of incorporating conduct that involves serious malpractice and/or a serious threat of harm to consumers, for example, rogue traders overcharging vulnerable consumers for unnecessary work. 1.6 The OFT would therefore consider the removal of the possibility of prosecution in relation to the consumer protection law that we deal with to be detrimental to the effectiveness of the regime and to pose risks for the consumer. Similarly it would be undesirable (and challenging) to reframe the law such that parties are subject to criminal prosecution only where significant harm results and/or there is evidence of a high level of culpability. While the proposed approach might logically appear to be consistent with the strong principle of reserving criminal sanctions for the worst behaviour, in practice it would complicate the process of effective enforcement, by making the prosecution of such offences – which by their very nature require prompt and targeted action – more difficult and resource intensive. Enforcers would therefore be less able to deal appropriately with the worst types of behaviour in a time sensitive manner, and may be put off altogether against a background of limited resources and outcome driven prioritisation. Under-enforcement would reduce the incentive for traders to comply not only with the law, but with the preliminary (or soft enforcement approaches) widely used by enforcement authorities as a mean of gaining compliance without resort to the courts. 1.7 Such a procedural approach appears unnecessary because: there does not appear to be any specific evidence that the criminal law is being used as the primary means of promoting consumer protection regulatory objectives. The statistical evidence quoted in the consultation document demonstrates that regulators are not abusing the low level offences; the law already makes extensive provision to minimise the risk of such abuse. Enforcers performing regulatory functions are already subject to a range of requirements designed to ensure they deal proportionately and fairly with those they regulate. We are not aware of any evidence that this legislation is failing to achieve its aim. 2 1.8 The current approach of making regulators accountable for their use of their discretion, rather than removing it altogether, is in principle the right one in terms of delivering the best outcomes for consumers and the economy. This approach reflects the fact that enforcers are accountable public bodies subject to a range of appropriate checks and balances. We believe the government's policy to introduce administrative sanctions under Part 3 of the RESA as an alternative to criminal sanctions will maximise the ability of enforcers to comply with their legal obligation to act proportionately and use criminal sanctions as a last resort. 1.9 NB The OFT’s response has an annex of OFT criminal cases and offences under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). HSE 1.10 Agree with the principle that criminal law should be reserved for the most serious offences. Penalties should be effective, proportionate and dissuasive. Alongside this, regulators should operate in a transparent, proportionate manner, targeting serious issues and applying a consistent approach that is appropriate to the regulatory regime, so that businesses are clear on what the law says, what they must do to comply, and what to expect where they fail in their responsibilities. The legislative architecture for health and safety in existence currently, strikes a good balance and meets these principles. 1.11 Health and safety duties cover a diverse range of activity that could lead to harm and it is a matter of circumstances whether a major incident, serious injury, or death arises. The context of each breach of the law determines the enforcement action that arises with prosecution taken in the most serious cases only. A failure to comply with the law in respect of public safety, for example, may regulate in a major explosion at a chemical site causing devastation in a private dwelling due to faulty gas installation. HSE’s enforcement response in respect of these breaches depends upon the circumstances of each case and is made in accordance with our Enforcement Policy Statement. 1.12 The Health and Safety at Work etc Act, regulations and associated enforcement approach is a mature regime that has overseen a considerable reduction in injuries and ill health in the last 35 years. We are keen to ensure that these proposals do not reduce the duties on those who create risks to manage those risks. Recommendation 16, for example, would mean a diminution of existing duties on directors under health and safety law, which we do not support. It is crucial that businesses display strong health and safety leadership at board level, taking ownership of risk and managing it. It is important that current duties on directors remain with penalties available to the Courts where there is a serious breach of the law and prosecution is the appropriate response. 1.13 We would not want to see a reduction in penalty options for serious offences which place people’s lives at risk. We acknowledge that the use of civil sanctions may be a suitable alternative means in some regulatory regimes, but with our current wide range of enforcement options we have no, to date, identified any significant gaps which would warrant their use within HSE. 3 1.14 The first of the two broad aims of the CP is to introduce rationality and principle into the structure of the criminal law, especially when it is employed against business enterprises. The second aim is to consider whether there should be created a statutory power for courts to apply a ‘due diligence’ defence. Our comments under proposals 14 and 15 refer. 1.15 We agree that businesses should be clear on what the law requires and how it will be enforced, including sanctions that may be applied and in what circumstances.
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