Abstract
Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered as important constituents of trial fairness. Relying on a new conceptualisation of regulatory offences, this paper advances a theory that justifies these exceptional rulings.
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Notes
See Horder (OUP 2014).
The concept of the ‘regulatory pyramid’ was introduced by Ayres and Braithwaite (OUP 1995) 35ff. The pyramid represents a desirable arrangement of interactions between the regulator and the regulatee. The vertical dimension indicates the severity of the regulatory response—the most severe response being at the apex. The horizontal dimension indicates the volume of responses. The underlying idea is that coercive instruments should be employed only when compliance cannot be achieved with less severe instruments, such as persuasion and warnings. Thus, the majority of responses should be of a non-coercive nature.
See Carson, above n 3, 394–395, Richardson, above n 3, 296, 303, and Wells and Quick (CUP 2010) 666.
Lacey (OUP 2004) 163.
It is important to consider that, according to the ECtHR and the English case law, the fairness of the trial crucially depends on how pre-trial procedures are conducted. For a discussion of the procedural safeguards that are constitutive of trial fairness, see Ashworth and Redmayne (OUP 2010), in particular Chapters 5, 9, and 11.
In Sect. 4, I will consider this approach in more detail, discussing some relevant case law. The claim that the ease of conviction produces deterrence is controversial and needs empirical testing. I am not discussing this issue here.
Cf. Norrie (CUP 2014) 104–106.
In assessing the legitimacy of strict liability offences, courts often distinguish between acts that are ‘truly criminal’ and acts that ‘are not criminal in any real sense.’ This distinction seems to reflect the mala in se/mala prohibita divide. See Sherras v De Rutzen [1985] 1 QB 918, Gammon Ltd. v Attorney General of Honk Kong [1985] 80 Cr App R 194, B v DPP [2000] 2 WLR 452. Of course, the fact that a crime is malum prohibitum does not necessarily mean that it is not morally wrong to commit it. See Green (OUP 2006), Chapter 20.
See Norrie, above n 9, 116.
See Ogus (CUP 2014), above n 3, 29.
Cf. Ramsay, above n 2, 49.
Ashworth, above n 2, 228.
Wells and Quick, above n 5, 661.
Lacey, above n 6, 147.
The same holds true if we adopt Black’s definition of regulation offered in ‘Critical Reflections on Regulation’ (2002), 26.
See Sanders (CUP 2014), above n 3, 44–45.
The Law Commission has recently recognised, and commented on, this difficulty. See Law Commission (Law Com No 195, 2010) paras 3.43–3.51.
On the ‘ameliorative analysis’ of concepts, see Haslanger (2006), in particular 95–96.
Cf. Glover (2007), 268–269.
See sections 87(1), 4(1), and 12(1) of the Act, respectively.
It is, in fact, expressly referred to as a ‘duty’ in section 2(1) of the Health and Safety at Work Act 1974.
See section 33(1)(a) of the Act.
The change in circumstances affects the entitlement, and failing to discharge the duty may be a sufficient reason for denying the benefit.
Sections 16(2) and (3) of the Act contain two offences of failing to notify a change of circumstances. Both are more complicated than the sketch I have given in the example. A critical discussion of these offences is offered in Horder (2015).
It may be argued that rape and sexual assault are regulatory crimes under my definition: the law authorises individuals to engage in sexual acts on the condition that they discharge the duty to secure consent from the sexual partner. This claim is unconvincing, given that under the Sexual Offences Act 2003 an individual may be acting legally even in the absence of consent, provided that she has a genuine and reasonable belief in consent. Should we then say that the law authorises an individual to engage in sexual acts on the condition that she discharges a duty to believe in consent on the basis of reasonable grounds? This would be a curious duty indeed, given that we cannot believe at will. And restating the duty as a duty to gather reasonable grounds for belief—rather than a duty to believe—may still seem unsatisfactory, given that someone who discharged this duty would be acting criminally unless she also genuinely believed in consent—although I concede that this belief will almost always be present if the duty is discharged—or the sexual partner actually consented. Admittedly, however, the cases of rape and of sexual assault are similar in some relevant respects to the regulatory scenario that I will discuss in Sects. 3.3 and 4.3. But see below n 103.
Cf. Law Commission, above n 19, paras 1.9–1.12.
Whether they are enforced through the criminal law or not.
Notably, the strength of this argument may vary depending on how difficult it was for the agent to know about the applicable duties at the time of deciding to undertake the activity.
I am here relying on the courts’ understanding of the presumption and assuming that the knowledge of, or belief in, the information would be relevant to the defendant’s guilt. I will say more about the presumption of innocence in the following sections.
As previously pointed out—and as we will see again in the following sections—this is often the case. In particular, if in our example this weren’t the case, there wouldn’t be a curtailment of the presumption of innocence—given that the presumption does not require the prosecution to prove facts that are not constitutive of the defendant’s guilt. It may be that the failure to discharge the duty is not a constitutive element of guilt. If so, the first point still holds.
(2008) 46 EHRR 21.
(1997) 23 EHRR 313.
Saunders, ibid., 337.
The tension is even more obvious if one adopts Mike Redmayne’s characterisation of the privilege as shielding suspects and defendants against the imposition of duties to cooperate with the authorities. See Redmayne (2007).
O’Halloran, above n 33, 416.
See Redmayne, above n 36, 228–231; Ashworth, (2007) 897; Ashworth and Redmayne, above n 7, 149–150.
See Brown v Stott (Procurator Fiscal, Dunfermline) and another [2001] 2 WLR 817.
O’Halloran, above n 33, 416 ff.
[2000] 1 WLR 1071.
Cf. Ashworth and Redmayne, above n 7, Chapter 11.3.
(1998) 28 EHRR 101.
See Teixeira, ibid., 113–116.
Amin, above n 41, 1080–1081.
Another example of test-purchase case is London Borough of Ealing Trading Standards v Woolworths plc [2001] LLR 502. The case involved the sale of an ‘18’ category film (Rambo) to a minor who was acting on behalf of a council’s trading standards officer.
[2001] 1 WLR 2060.
Ashworth convincingly suggests that two other factors ‘may be distilled’ from Looseley: first, the officers must be duly authorised to carry out the operation, in compliance with the appropriate code of practice; second, the officers must do no more than provide the individual with an unexceptional opportunity to commit the offence. See Ashworth, (2002), 170.
See Looseley, above n 47, 2078.
Consider also Woolworths, above n 46.
See Ashworth, above n 48, 167 and Redmayne, (OUP 2012) 157, 167–168. In The Criminal Process, above n 7, 289 Ashworth and Redmayne, referring to test-purchase cases, add that ‘while requiring suspicion might be appropriate in cases involving shopkeepers, it would be far more difficult in the Amin scenario.’
Consider that, although Amin came before Looseley, it was not overruled in the latter case. In fact, the House of Lords cited the High Court’s decision multiple times with warm approval.
[2003] 1 WLR 1736.
The crime description is, in fact, more complex than reported here.
Woolmington v DPP [1936] 25 Cr App R 72.
Woolmington, ibid., 95.
The article states that ‘[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’
Salabiaku v France (1991) 13 EHRR 379, 388.
See R. v S [2003] 1 Cr App R 35, para 14.
For a survey of the debate and a defence of the so-called ‘restrictive proceduralist’ view, see Federico Picinali, (2014). For further discussions on the meaning and the justification of the presumption of innocence consider the articles in Criminal Law and Philosophy Volume 8, Issue 2 (2014).
See Picinali, above n 60, 248 ff.
Cf. Dennis (2005), stating at 920 that the decision in Johnstone can be understood as an exception to the ‘foundational principle’ that ‘if liability for the offence incorporates elements of adverse moral evaluation of the defendant's conduct the state's prosecuting agencies should justify to the court why it should make those adverse moral evaluations. Any burdens on the defendant in respect of these evaluations should be evidential only.’
One can enjoy a privilege not to X only if she does not have a duty to X. Cf. Hohfeld (1913–14), 38–40.
That is—in the language of the ECtHR—whether the duty is a proportionate means to achieve a legitimate aim.
O’Halloran, above n 33, 414. Cf. ibid., 404–408.
Above n 39.
It should come as no surprise that the ECtHR in O’Halloran quoted Stott with regard to the latter factor.
Stott, above n 39, 710. For statements of a similar tenor, see also 711.
Stott, ibid., 705.
Stott, ibid., 723.
Redmayne, above n 36, 229–230. See also Ashworth, above n 38, 899.
Redmayne, above n 36, 229.
Redmayne, ibid., 229–230. Cf. Choo (Hart 2013), 79. The Supreme Court of Canada relies on a similar argument to justify regulatory duties. See R. v Wholesale Travel Group Inc. [1991] 3 SCR 154, 227–233. The relevance of the choice—whether to participate in the regulated activity—to the justification of the regulatory duty is recognised also in Sweet v Parsley [1970] AC 132, 163.
In fact, the duty in section 172(2)(a) applies to the owner of the car, not the driver.
See Wholesale, above n 73, 230.
For a recent general discussion of the relationship between responsibility and awareness, see Lacey (2015).
A possible starting point for a formulation of this argument may be the arguments from implicit consent or promise criticised by Smith in his article ‘Is There a Prima Facie Obligation to Obey the Law?’ (1973), 960–964.
In fact, the Act considers a series of specific violations rather than referring in general to the violation of the terms of the licence.
Another important issue that I do not address here is whether and when a licensing regime should be backed up by criminal sanctions.
Privileges and no-rights are correlatives. See Hohfeld, above n 63, 32–33.
If this is correct, one may consider extending the formulation of the justificatory theory so as to encompass no-rights that derive from a regulatory regime—rather than merely duties. I find this amendment promising, but I haven’t yet considered it with sufficient care.
I am aware that a system of random checks involves the risk of abuses on the part of the authority, and that this risk should be taken into account when assessing whether the system is in the public interest. My discussion here proceeds under the assumption that abusers can be effectively discovered, disciplined, and deterred.
Looseley, above n 47, 2069.
Looseley, ibid., 2070.
Ashworth and Redmayne, above n 7, 289. See also Redmayne, above n 51, 161–163.
For a thorough defence of the ‘currently engaged’ test, see Redmayne, ibid.
For a different view, see Seidman (OUP, 2009).
Of course, the checks of the authority must comply with certain requirements including, most notably, the respect for individual dignity and for personal integrity. Consider also the text accompanying n 48 and, in particular, the requirement that officers do not offer an exceptional opportunity to commit the crime. The authority is not entitled to offer exceptional opportunities to commit a crime because doing so would not be functional to testing whether the licensee is fit for the job, i.e., capable of respecting the terms of the licence in the presence of normal opportunities to violate them.
In fact, it seems possible to extend this argument to any regulatory activity as characterised in Sect. 2.1, whether or not a licence is necessary to engage in it: when the violation of a regulatory duty is criminalised the requirement of reasonable suspicion may not apply to proactive enforcement strategies aimed at testing whether the individual would commit the regulatory offence.
Above n 53.
Cf. Duff (OUP 2005) 138, discussing the duty to ensure in the context of health and safety at work.
For someone following the restrictive proceduralist approach defended in Picinali, above n 60, it seems more precise to argue that the procedural protection does not apply to the facts covered by the duty because these facts are not constitutive of guilt—i.e., they are not part of the offence definition. The presence of the duty makes it legitimate to craft the offence so that the negatives of these facts are not elements thereof—while the facts may be treated as (non-overlapping) defences. In other words, rather than having an impact on the procedural safeguard, the regulatory duties have an impact on the substantive issue consisting in the definition of the offence.
Above n 59.
Johnstone, above n 53, 1751.
See Johnstone, ibid., 1751 and S, above n 59, para 48.
See Johnstone, above n 53, 1748–1749.
Notice that there doesn’t seem to be any serious issue concerning the knowledge of, or access to, the duty to ensure on the part of the regulatee. As long as she is expected to be aware of the duty in section 92, and as long as ensuring the non-infringing nature of the goods is the obvious way to discharge this duty, it is reasonable to expect that the regulatee is also aware of the duty to ensure.
The alternative would be to claim that the presumption of innocence is a claim-right. Under this reading, the defendant would have a right that the state proves her guilt while the state would have the correlative duty towards the defendant to prove her guilt. This seems an awkward interpretation of the presumption as it assumes that the state would be failing—i.e., violating the right of—the defendant if it did not prove her guilt.
On the relationship between privileges and duties, see Hohfeld, above n 63, 32 ff.
See Duff, above n 91, 138 and Hamer, above n 96, 167.
Absent particular circumstances, being incapable of handing over the information is evidence that the duty to ensure was not discharged.
This argument does not seem to apply to the case of rape and sexual assault. See above n 27. Even if a duty to ensure consent exists, we should not conclude that someone who has discharged this duty should not find it difficult to prove this in court—given that the relevant information usually comes in oral form, and that the complainant always denies the presence of consent. What this shows is that, even though rape and sexual assault may fall under the definition of regulatory offences given in Sect. 2.1, it does not necessarily follow that the theory defended in this article would justify the denial of any procedural safeguard in trials for these sexual offences.
The case is marginal because it is very unlikely that someone may have a reasonable belief that the goods are non-infringing if she hasn’t discharged the duty to ensure and is, in fact, dealing with infringing goods.
Stating that ‘[i]t shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Stating that, in proceedings concerning the violation of a duty prescribed by the act, it shall be for the employer (although the act also prescribes duties for the employees and other individuals) to prove ‘that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty.’
See Duff, above n 91, 137–139.
See Woolworths, above n 46.
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Acknowledgments
I am very grateful to Mike Redmayne, Nicola Lacey, Jules Holroyd, Jeremy Horder, Emmanuel Melissaris, and Nick Sage for the invaluable exchanges I had with them during the research for this article and for their helpful comments and criticisms on previous drafts. An earlier version of the article was presented at the LSE staff seminar in February 2016. I am grateful to all participants for their consideration and comments.
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Picinali, F. The Denial of Procedural Safeguards in Trials for Regulatory Offences: A Justification. Criminal Law, Philosophy 11, 681–703 (2017). https://doi.org/10.1007/s11572-016-9400-y
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DOI: https://doi.org/10.1007/s11572-016-9400-y