Regulation, Businesses, and Criminal Liability
| Author | Michael Jefferson |
| DOI | 10.1350/jcla.2011.75.1.682 |
| Date | 01 February 2011 |
| Published date | 01 February 2011 |
| Subject Matter | Comment |
COMMENT
Regulation, Businesses, and Criminal
Liability
Michael Jefferson*
Keywords Law Commission; Reform of the criminal law; Business
enterprises; Strict liability; Due diligence; Corporate liability; Vicarious
liability
The wide-ranging and cross-cutting Law Commission Consultation
Paper No. 195, Criminal Liability in Regulatory Contexts (2010)1seeks to
restrain the deployment of regulatory criminal law. It is well worth
reading, as are the three appendices by various professors including
Celia Wells, the UK’s foremost expert on corporate criminal liability;
Appendix A by Professor Black deals with the policy choice among civil,
criminal and administrative sanctions and this should prove very useful
to readers and policymakers.
The Consultation Paper’s highlights are these proposals, some of
which are stunning:
●Criminal law should be used as a last resort and only for serious
violations of business regulations. Instead there should be a pyra-
mid of sanctions, with the replacement of low-level criminal law
(which would be repealed) with a ‘toolkit’ of ‘civil penalties’, a
term which strikes some as strange, to say the least. Agencies
which use criminal sanctions should be subject to a common set
of principles to be employed before they consider using criminal
law for those serious infringements. ‘Our overarching theme is
that the criminal law is too often used in instances where a non-
criminal civil penalty, or other non-criminal measure, would
better fit the regulatory context and would be fairer to those
subject to regulation’ (para. 3.2).
●The Commission also rejects creating a category separate from
civil and criminal law, that of ‘administrative offences’ such as
exists in Germany and France. While there are already some such
offences, for example in relation to parking, the Commission
thinks that the practical difficulties of establishing such a scheme
are too difficult: Article 6 of the European Convention on Human
Rights would have to be complied with if the issue fell within
‘criminal’ matters as defined by case law; distinguishing which
offences fit within the concept of administrative offences and
which do not will lead to lengthy arguments; and ‘. . . there is a
risk that, for reasons of political or bureaucratic expediency,
* Senior Lecturer, School of Law, University of Sheffield; e-mail:
M.Jefferson@sheffield.ac.uk.
1 Available at http://www.lawcom.gov.uk/docs/cp195_web.pdf, accessed 23 November 2010.
37The Journal of Criminal Law (2011) 75 JCL 37–44
doi:10.1350/jcla.2011.75.1.682
To continue reading
Request your trial