Criminal Offences

AuthorMatthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede
Pages559-590

Chapter 12

Criminal Offences

INTRODUCTION

12.1 The offences dealt with in this chapter fall into the category often known as ‘regulatory crime’, and it may be some small consolation for those liable to conviction for such offences that in the eyes of many, the offences are not in any real sense ‘criminal’ at all. The view has often been expressed, particularly in the context of consumer protection legislation, that the imposition of regulatory penalties through the criminal courts is merely intended to reinforce the extent of the supplier’s positive obligations to the general public to ensure maximum consumer safeguards. This attitude is clearly discernible, for example, in the speeches of Lords Hailsham and Scarman in Wings Ltd v Ellis1(a case under the Trade Descriptions Act 1968) and the judgment of Lord Widgery CJ in MFI Warehouses Ltd v Nattrass2(also with regard to trade descriptions).

12.2 Regulatory or consumer protection crimes follow a common statutory pattern:

ƒ The offences are frequently offences of strict liability.
ƒ Strict liability offences are subject to specific statutory defences, the burden of proving which lies on the defendant. Broadly speaking, the defendant must show that due diligence has been exercised to avoid the commission of the offence. In practice this is a high threshold to cross.
ƒ The combination of strict liability and statutory defences erects a framework of qualified strict liability.
ƒ Where an element of mens rea (or ‘guilty mind’, for example recklessness) is included in the offence, the element often carries its own statutory definition which is different, and more onerous, than that imposed by the general criminal law.

1Wings Ltd v Ellis [1985] AC 272.

2MFI Warehouses Ltd v Nattrass [1973] 1 WLR 307.

560 Saggerson on Travel Law and Litigation

ƒ This framework of qualified strict liability has the effect of imposing on organisers and retailers alike a mutual and self-policing role. Every party along the chain of supply before the product or service reaches the consumer has a measure of responsibility to ensure that what is offered to the general public is, and is promoted, in a way that is ‘decent, honest and true’, and this will invariably involve an obligation on the likes of the retailer to institute a system of checks and double-checks to ensure that those further up the line of supply3are not guilty of, for example, any misdescriptions relating to the facilities or services offered.

ƒ Where corporate bodies are guilty of regulatory offences, directors and managers who can be shown to have ‘connived’ at an offence, or to whom the offence is ‘attributable’ can be pursued in the criminal courts, as well as the guilty corporation. Bad, or even complaisant, managers and directors cannot, therefore, hide behind their respective corporate veils.

12.3 This outline is enlarged upon in this chapter in the context of a number of specific criminal offences under the Package Travel Regulations 2018, the Denied Boarding Regulations 2005, the Disability Discrimination Regulations 2007 and the Consumer Protection from Unfair Trading Regulations 2008. A brief examination of other criminal offences concludes the chapter.

THE PACKAGE TRAVEL REGULATIONS 2018

12.4 Regulations 5 and 7 of the Package Travel Regulations 2018 provide for criminal sanctions in respect of failure to provide travellers with accurate information; regulations 19 to 26, dealt with in Chapter 11, provide for criminal offences in respect of security and insolvency. In essence, regulations 5 and 7, together with the Schedules to the Regulations, set out the information to be provided by organisers and/or retailers in various differing scenarios, reflecting the breadth of the Regulations compared with the Package Travel Regulations 1992.

Who may prosecute the offences under regulations 5 and 7?

12.5 Pursuant to regulation 31(1) of the Package Travel Regulations 2018, every local weights and measures authority in Great Britain is an enforcement authority for the purposes of enforcing the sanctions under regulations 5 and 7, as is the CAA4and, in Northern Ireland, the Department for the Economy.5The

3Invariably the tour operators.

4 Package Travel Regulations 2018, regulation 31(2).

5Package Travel Regulations 2018, regulation 31(3).

prosecution time limit is 3 years from the date of the offence, or one year from the date the prosecutor discovered it, whichever is the earlier;6but it should be borne in mind that the failure to provide information is an ongoing offence, and so the date of offence may not be readily apparent at first blush.

12.6 Offences are triable either way, and, on indictment, are punishable by way of unlimited fine.7

By whom are the duties owed?

12.7 The duty to provide information rests on both retailers and organisers, but they may agree between themselves that one or the other is to perform the duty, and if they do, whichever of them accepts the duty is the entity liable to prosecution under regulations 5 and 7 of the Package Travel Regulations 2018.8

It will readily be understood, therefore, that it is of the utmost importance for retailers and organisers to make it crystal clear which of them bears the burdens imposed by these Regulations; ultimately, that entity will be exposed to potential criminal liability under the Regulations. This is not the end of the matter, however; pursuant to regulation 33(1), where the commission of an offence under regulation 5 or regulation 7 is due to an act or default committed by some other person in the course of their business, the other commits the offence and may be proceeded against and punished whether or not proceedings are taken against the first-mentioned person. It would appear, therefore, that where, for example, a tour operator agrees with a retailer that the latter will comply with the information provisions, but does not provide the retailer with the ability to do so, the tour operator will be guilty of an offence whether or not the retailer is also prosecuted. Furthermore, pursuant to regulation 33(2), where a failure to comply with the Regulations is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, both that person and the body corporate commit the offence and are liable to be proceeded against and punished accordingly. It is, thus, possible for individuals to be prosecuted and fined an unlimited sum where it can be shown that they have not conducted themselves properly or have neglected their duty to ensure that proper information is provided under the terms of regulations 5 and 7.

12.8 Rather surprisingly, the fact that the principal offender may have a statutory defence (whether as found at trial, or whether the probability of such a

6Package Travel Regulations 2018, regulation 34(1).

7Package Travel Regulations 2018, regulations 5(5) and 7(12).

8Package Travel Regulations 2018, regulation 4(3).

562 Saggerson on Travel Law and Litigation

defence inclines the authorities against a prosecution) is irrelevant. That is to say, where the principal offender is acquitted by reason of his exercise of all due diligence,9it by no means follows that the secondary offender will also be acquitted unless they too can establish one of the statutory defences in their own right. This is because the offence has been committed, whether or not the principal offender is relieved of the consequences of its commission (namely conviction and penalty) by reason of a statutory defence. The statutory defences arise under regulation 32 only when that person (i.e. the one undertaking the burden of proving the statutory defence) can bring themselves within the terms of that provision; one person’s statutory defence cannot come to the aid of another. That is not to say, of course, that a number of people (for example, company directors or employees) might not individually be able to rely on identical factors and evidence in proving a common statutory defence.

The nature of the duties owed

12.9 The Package Travel Regulations 2018 impose much more detailed and onerous duties than did the Package Travel Regulations 1992 to provide pre-contractual information; and the extent of the information to be provided is set out in full in the Schedules to the Regulations:

SCHEDULE 1 Information to be provided to the traveller, where applicable, before the conclusion of the package travel contract

SCHEDULE 2 Information to be provided to the traveller before the package travel contract is concluded, where the use of hyperlinks is possible

SCHEDULE 3 Information to be provided to the traveller before the package travel contract is concluded, where the use of hyperlinks is not possible

SCHEDULE 4 Information be provided to the traveller, where the organiser transmits data to another trader in accordance with regulation 2(5)(b)(v)

SCHEDULE 5 Information to be provided in the package travel contract SCHEDULE 6 Information to be provided to the traveller, where the trader facilitates an online linked travel arrangement within the meaning of regulation 2(3)(a) and the trader is a carrier selling a return ticket
SCHEDULE 7 Information to be provided to the traveller, where the trader facilitates an online linked travel arrangements within the meaning of regulation 2(3)(a) and the trader is not a carrier selling a return ticket
SCHEDULE 8 Information to be provided to the traveller, where the linked travel arrangement is an arrangement within the meaning of regulation 2(3)(a) and the contract is concluded in the simultaneous physical presence of the trader (other than a carrier selling a return ticket) and the traveller
SCHEDULE 9 Information to be provided to the traveller, where the trader facilitates an online linked travel arrangement within the meaning of regulation 2(3)(b)...

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