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    LAW COMMISSION CALLS FOR FEWER CRIMINAL OFFENCES

    Due diligence and director liability for H&S under consideration for change 

    In August 2010 the Law Commission launched a consultation paper entitled: Criminal Liability in Regulatory Contexts, setting out the case for reducing the scope for criminal law to be used in areas of state regulation. The Commission argue that:

    • criminal law should be restricted to punishing and deterring only ‘serious’ risks;
    • civil penalties for minor breaches could reduce regulator and justice system costs by £11m p.a;
    • criminal prosecution can cost almost twice what the courts obtain in fines; and
    • civil penalties may be fairer in that they involve less uncertainty and delay.

    The consultation document states that the ‘project’ is looking at three main areas:

    1. Criminal v Civil Law: use of the criminal law as a way of promoting regulatory objectives and public interest goals. When is a criminal offence needed and what form should it take? The project aims to create a set of guidelines for law-makers on when and how they should use the criminal law;
    2. Consent and Connivance: 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 particular, the doctrine of delegation and the doctrine of ‘consent and connivance’.
    3. Due Diligence: the possibility of giving courts the power to apply a due diligence defence when interpreting the scope of the statutory offence.
    Civil penalties quicker and cheaper?

    The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.  Professor Jeremy Horder, the Law Commissioner leading the project, said:

    “Relying on the criminal law to deter and punish risky behaviour in regulatory contexts may be an expensive, uncertain and ineffective strategy. Civil penalties are quicker and cheaper to enforce but they are not a soft option.

    People who breach regulations will often discover that civil fines can be higher than the penalties imposed by the courts.

    The Commission believes that a principled criminal law should be used by regulators to target only the most serious cases of unacceptable risk-taking.”

    Comment

    The consultation period ended on 25th November 2010. We understand that the Law Commission project team are now working through consultation responses and hope to publish a report in autumn 2012.

    Major change is clearly a long way off.  However, changes in the use of criminal / civil law and the addition of a blanket due diligence defence would represent major change in workplace safety regulation.

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