3.1On one view, strict adherence to a criminal-civil divide is unrealistic. Indeed, it fails to reflect accurately our current justice system, where the criminal-civil dichotomy has been compromised legitimately for a variety of policy reasons. Supporters of civil pecuniary penalties argue that, while they breach the traditional divide, they are an appropriate response to certain types of contravention that are not adequately deterred by criminal offences, do not demand the moral disapprobation that accompanies criminality, or for which criminalisation is otherwise inappropriate. In particular, they are an important tool in the enforcement of regulatory regimes which have been put in place for particular policy reasons and in the public interest. Those imperatives, it is argued, warrant the use of civil pecuniary penalties.
3.3In this chapter we describe the traditional differences between the criminal and civil branches of law. We then consider the nature of civil pecuniary penalties and determine that they are a “hybrid”: that is, they display traditional features of both branches of law. We take the position that there is nothing wrong with a hybrid sanction per se, but suggest that the adoption of any such model should take place in the light of robust analysis and be guided by principle.