SL Evaluation

SL Evaluation

1. Policy issues

   • Statutory offences largely created to protect the public and the risk of dangers outweigh the individuals rights
     • E.g. SL offences incentivise the vehicle owners to maintain their vehicle in a roadworthy condition to reduce risks
     • Roscoe Pound: 'Not meant to punish the vicious but to put pressure upon the thoughtless and inefficient...'

2. Social utility

   • SL offences regulate activities involving potential danger to public health, safety or morals
     • E.g.
       • Hygiene in food processing and sale
       • Obeying building and transport regulations
   • Promotes greater care by encouraging higher standards
     • Failure to comply with standards could risk the life and health of a large number of people
     • Is there evidence to support this?
     • Possibly counter-productive in that, if a person can be prosecuted after taking all precautions they may not bother to take any at all and save the money

3. Other justifications

   • Easier to enforce as no need to prove MR
     • Rather than prosecute for minor regulatory breaches the Health and Safety Executive and local Trading Standards are more likely serve improvement or prohibition notices first
       • Ensures compliance of the law without court hearing
   • Saves court time
     • Many Ds plead guilty as only the act needs to proved
   • Provision of a 'due dilligence' defence where Parl. consider this appropriate
     • Can soften the law on SL
     • Parl. provides for this in many instances by including it in the statute creating the offence
     • But this appears haphazard
       • H LBC v Shah & Shah
         • Defence is allowed for promoters of the lottery but not for those managing a business in which lottery tickets are sold
   • Lack of blamewothiness can be taken into account when sentencing
     • A lenient sentence is likely to be enforced if J feels the level of blamewothiness is low

4. Liable even though not blamewothy

   • Even those who have taken every possible care will be found guilty
     • Harrow LBC v Shah & Shah
     • Callow v Tillstone

5. Guilty even though unaware of the risk

   • Environment Agency v Empress Car Co (Abertillery) Ltd
     • Lords considered the word 'cause' in a SL offence. Held that a D could only escape an SL offence if he could show that the occurence arising from the operations of his business was 'abnormal and extraordinary' rather than a normal fact of life
       • Whether it was forseeable or not is not to be considered
         • So D can be liable without foreseeing the risk
           • Environment Agency v Brook plc

6. Doesn't improve standards

   • No evidence to suggest it does
   • Profit from risk
     • If likely to be prosecuted anyway and the cost of covering a small risk is high then the business may decide to take the profit instead of covering the risk

7. Contrary to HR

   • R v G
     • Lords ruled unanimously that A6(1) only guarenteed fair procedure and wasn't concerned with content and A6(2) required the presumption of innocence but made no reference to what the mental or other elements should be

8. Social stigma

   • Imposition of criminal liability creates social stigma for the defendant
     • G was put on the sex offenders list
   • This isn't a problem with regulatory offences

9. Reform proposals

   • Parliament should expressly state whether or not it is a SL offence
     • Draft Criminal Code clause 20 suggested the presumption of mens rea
   • Defence of due diligence fully available to all SL offences
     • J's developed this in Austrailia & Canada
   • No imprisonment for SL offences
   • Removing regulatory offences from criminal system and making them administrative
     • However, injustices like R v G will still exist