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Abolishing trivial regulatory crimes 'will save millions'

25 August 2010

Cutting the number of petty crimes on statute books could save £11m a year, according to the Law Commission.

In a consultation paper launched today, the commission argues that government departments and agencies are draining the legal system by adding unnecessary criminal elements to regulations.

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.”

Farming, food safety, banking and retail are listed as key offenders in the growing trend of criminalising minor breaches of regulations.

A surge in the number of criminal offences created since the late 1980s has become a drain on the legal system, the commission argues.

It points to section 8 of the Asylum and Immigration Act 1996, which prohibits the employment of illegal migrant workers, as one example where the costs to the court of hearing a case could be double that of the revenue generated by the fines it can dole out.

Calling for low-level criminal offences to be appealed, the commission’s paper, ‘Criminal Liability in Regulatory Contexts’, says regulatory authorities should make more use of “cost-effective, efficient and fairer civil measures” to govern standards of behaviour, such as ‘stop’ notices, enforcement undertakings and fixed penalties.

The establishment of a set of “common principles” is also recommended, to help agencies decide when the use of criminal law is appropriate, based on a ‘serious wrongdoing’ test.

The Law Society has welcomed the recommendations, with president Linda Lee arguing that a “constant barrage” of new legislation has left the legal system “overwhelmed”.

She went on: “This expansion of criminal law in recent years has criminalised an increased proportion of the population and further disrupted the balance between the power of the state and the freedom of the individual.

“In most cases, a civil penalty may be more easily enforced and act as a better deterrent than using the full force of a prosecution for a criminal offence.”

The consultation follows a 2009 request from the Ministry of Justice and the Department for Business, Innovation and Skills, to ‘rationalise’ criminal law, particularly in the field of business regulation.

The consultation closes on 25 November 2010.

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