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.

 

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