Criminal Liability in Regulatory Contexts

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The regulatory aspects of the proposals in the consultation paper have been implemented in part by the Government in its guidance to departments. The remainder of the proposals, which dealt with a small number of aspects of corporate liability, are on hold but we aim to deal with them as part of a full scale project on corporate liability in the future

The main recommendations we made in this project aimed to establish a principled basis for the creation of criminal law in regulatory contexts. We also considered particular doctrines of liability applicable to businesses and make proposals to ensure that they are fair to such bodies, in particular small businesses.

The project

A significant proportion of the new criminal offences created in England and Wales each year have a regulatory or public interest objective.  In this regard this project, which has a particular focus on the treatment of businesses under the criminal law, looks at three main areas:

• First, this project looked at the use of the criminal law as a way of promoting regulatory objectives and public interest goals. The focus was on offence creation – when is a criminal offence needed, and when it is, what form should it take?  The project aimed to create a set of guidelines for law-makers across Whitehall on when and how they should use the criminal law.
• Second, the project considered 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. In this regard we looked specifically at the doctrine of delegation and the doctrine of ‘consent and connivance’.
• Third, we examined the interpretation by the courts of offences in the regulatory or public interest context.  In doing so we examined 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.