Selection for prosecution is a disgrace to our legal system

New Labour pushed risk based regulation to the top of the government agenda. Regulation represented a measure of state intervention in all manner of commercial affairs which cost little and could produce big results.

In 1998 its Better Regulation Task Force set out the five principles with which all regulation should

apply.

  1. Transparent
  2. Accountable
  3. Proportionate
  4. Consistent and
  5. Targeted – only at cases where action is needed

As usual, the Labour government was slow to engage, its Prince Hamlet complex at work in every area of reform.  Criticism grew and was taken up by the Conservative party in its unsuccessful election campaign in 2005.

The Hampton Report in 2005 set out further principles for regulatory inspection and enforcement, calling for regulation to be more targeted and less burdensome for both regulator and regulated.

Eventually the mouse emerged from under the sofa with the underwhelming Regulatory Enforcement and Sanctions Act 2008 setting out the principles first enunciated a decade before:

(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent;

(b) regulatory activities should be targeted only at cases in which action is needed”

But the Act failed to rationalise the way in which prosecutiorial powers were exercised.  By 2008 an extraordinary patchwork of regulatory agencies had gained powers to prosecute. Tory criticism and media complaints intensified.

In 2009 the MOJ and BERR agreed that the Law Commission should undertake a project

  • To introduce rationality and principle into the structure of the criminal law, especially when it is employed against business enterprises. In particular, this will involve the provision of non-statutory guidance to all Government departments on the grounds for creating criminal offences, and on what shape those offences should take
  • To consider whether there should be created a statutory power for the courts to apply a ‘due diligence’ defence (the burden of proof beingon the accused) to a criminal offence.

Some but not all of these problems are now addressed in the Law Commission’s Consultation Paper.  The rationalisation it recommends is covered elsewhere.  But the question we ask is whether the Consultation should not now extend to all criminal offences and not just those in the regulatory sector.

In the UK there is no general restraint on the selection of who to investigate and prosecute – unlike in the US.  There the Equal Protection and Due Process Act bars not only discriminatory but also irrational selection for prosecution.  A growing number of entirely mercenary prosecutions undertaken to maximise prosecutorial income under the Proceeds of Crime Act are a disgrace to our legal system.

The time has come for prosecution generally to be brought under principled control.

Criminal Prosecutions in Regulatory Contexts

The Law Commission has just published Consultation Paper 195 “Criminal Liability in Regulatory Contexts”.

It reflects the extraordinary proliferation of criminal law in the last 20 years, spreading into every nook and cranny of civil society.

“Halsbury’s Statutes of England and Wales14 has four volumes devoted to criminal laws that (however old they may be) are still currently in force. Volume 1 covers the offences created in the 637 years between 1351 and 1988. Volume 1 is 1382 pages long. Volumes 2 to 4 cover the offences created in the 19 years between 1989 and 2008. Volumes 2 to 4 are no less than 3746 pages long. So, more than 2 and a half times as many pages were needed in Halsbury’s Statutes to cover offences created in the 19 years between 1989 and 2008 than were needed to cover the offences created in the 637 years prior to that”.

Hundreds of bodies now have powers to prosecute, and to conduct the associated financial investigations which POCA encourages.  An unlucky few will be selected for prosecution each year, often not pour encourager les autres, but to fill the coffers of the state.

The Law Commission has published its proposals for reform, envisioning greater rationality in the use of these powers.  It has come up with some sensible and rational proposals which would limit prosecution in a regulatory context to those cases where someone has done something seriously wrong, and make sense of the often confusing liabilities of the corporate body and its liabilities.

The last government let approximately a third of Law Commission recommendations pass without action.  Hopefully the coalition government will do better.