UK: criminal liability in regulatory contexts - Law Commission consultation paper published

The Law Commission for England and Wales has published a wide ranging consultation paper titled Criminal Liability in Regulatory Contexts: see here (pdf). The paper sets out the Commission's provisional proposals, which include the following:

• The criminal law should only be employed to deal with wrongdoers who deserve the stigma associated with criminal conviction because they have engaged in seriously reprehensible conduct. It should not be used as the primary means of promoting regulatory objectives.
• Harm done or risked should be regarded as serious enough to warrant criminalisation only if, (a) in some circumstances (not just extreme circumstances), an individual could justifiably be sent to prison for a first offence, or (b) an unlimited fine is necessary to address the seriousness of
  the wrongdoing in issue, and its consequences.
• Criminal offences should, along with the civil measures that accompany them, form a hierarchy of seriousness.
• Legislation should include specific provisions in criminal
  offences to indicate the basis on which companies may be found liable, but in the absence of such provisions, the courts should treat the question of how corporate fault may be established as a matter of statutory interpretation. We encourage the courts not to presume that the identification doctrine applies when interpreting the scope of criminal offences applicable to companies.
• When it is appropriate to provide that individual directors (or equivalent officers) can themselves be liable for an offence committed by their company, on the basis that they consented or connived at the company’s commission of that offence, the provision in question should not be extended to include instances in which the company’s offence is attributable to neglect on the part of an individual director or equivalent person.
  
  

For further information see: Commission press release (pdf) | overview of consultation paper (pdf) |