Contents

List of questions

Q1 What circumstances favour the inclusion of civil pecuniary penalties in legislation?

Q2 To what extent is there scope to broaden the use of civil pecuniary penalties to target more traditional criminal offending, for example, where there is a comparatively low level of harm?

Q3 Is there any conduct for which civil pecuniary penalties are not suited?

Q4 Should civil pecuniary penalty statutes contain a broad instruction to the effect that “civil pecuniary penalty proceedings are civil proceedings and the usual rules of court and rules of evidence and procedure for civil proceedings apply”?

Q5 Should civil pecuniary penalty statutes contain a uniform standard of proof provision and, if so, what should it contain?

Q6 Do you agree that civil pecuniary penalty provisions should be drafted to maximise certainty over the allocation of the burden of proof?

Q7 Should civil pecuniary penalty statutes recognise a privilege against self-exposure to a non-criminal penalty?

Q8 Should a regulator be able to commence criminal proceedings if civil pecuniary penalty proceedings concerning the same conduct have already been started?

Q9 Should civil pecuniary penalty statutes require that, if criminal proceedings are commenced, the civil pecuniary penalty proceedings must be stayed?

Q10 Should there be a statutory restriction on the use in criminal proceedings of evidence adduced in civil pecuniary penalty proceedings?

Q11 Should a regulator be able to commence civil pecuniary penalty proceedings if criminal proceedings have failed or been withdrawn?

Q12 Are there any circumstances in which a regulator should be able to commence criminal proceedings if a civil pecuniary penalty has already been imposed?

Q13 Should all statutes containing criminal offences and civil pecuniary penalties state that no person may be liable for a civil pecuniary penalty and a criminal sanction for the same conduct?

Q14 Are there any circumstances in which a regulator should be able to commence civil pecuniary penalty proceedings if a criminal sanction (whether a fine or imprisonment) has already been imposed?

Q15 If the same conduct can contravene multiple civil pecuniary penalty provisions, should the statute provide that proceedings may be brought in respect of any one or more of the contraventions, but that a person cannot be liable for more than one civil pecuniary penalty for the same conduct?

Q16 When imposing penalties, should courts be required to take into account whether a management ban or other civil remedy has been imposed for the same conduct?

Q17 Should statutes specify in more detail what constitutes “the same conduct” for the purposes of multiple civil pecuniary penalties and criminal sanctions?

Q18 Where there is sufficient similarity of conduct, should this be dealt with through a statutory bar or through guidance for the courts in penalty setting?

Q19 Do you agree that enforcement bodies should develop and publish enforcement guidelines or policies?

Q20 Do you agree that there should be no prohibition on civil pecuniary penalties being used for contraventions which entail some degree of moral blameworthiness?

Q21 Should civil pecuniary penalty provisions be drafted to expressly require or exclude fault and to set out all the available defences?

Q22 What guidance should be in place for policy makers about the decision to opt for mens rea, strict or absolute liability civil pecuniary penalties? Specifically, should there be guidance that absolute liability civil pecuniary penalties should be contemplated only in rare circumstances when:
(a) there is an overwhelming national interest in using them as an incentive to prevent certain behaviour occurring, regardless of fault; and
(b) there is a cogent reason in the particular circumstances for precluding a defence of total absence of fault?

Q23 Should civil pecuniary penalty provisions be more explicit as to the degree and nature of knowledge required to establish ancillary liability?

Q24 Should civil pecuniary penalty statutes provide guidance to courts determining penalty quantum in cases where both a company and an individual are principally liable for the same contravention?

Q25 Should there be guidance for policy makers about the methods of attributing or ascribing liability between a body corporate and its officers in a civil pecuniary penalty regime?

Q26 Do you agree that any penalty:
  • that involves substantial maximum financial penalties;
  • that is imposed by the High Court after a civil trial, according to the rules of civil procedure and evidence;
  • where liability is established on the civil standard of proof;
  • where payment of the penalty is enforced in the civil courts, as a debt due to the Crown; and
  • where neither imprisonment nor criminal conviction can result;
should be referred to in legislation as a "civil pecuniary penalty"?

Q27 Do you agree that the imposition of variable monetary penalties by non-judicial bodies should be discouraged?

Q28 Should enforcement agencies be able to “settle” with parties that they would otherwise seek to have civil pecuniary penalties imposed upon?

Q29 If so, should there be a requirement to publicise details of the settlement, including (a) the agreed circumstances and nature of the breach and (b) the quantum of the agreed penalty?

Q30 Should enforcement bodies with such a power make public their policy for approaching settlement negotiations?

Q31 Are there any circumstances when individuals should be able to commence civil pecuniary penalty proceedings?

Q32 Should all civil pecuniary penalty regimes provide for a declaration of contravention to be made?

Q33 Should the setting of maximum civil pecuniary penalties in legislation be guided by the following principles?
Maximum penalties:
  • should reflect the worst class of case in each particular category;
  • should be designed to encourage compliance with the regulatory system at hand and so be set at a level to deter the classes and sizes of participants in that regulatory field;
  • should balance the promotion of compliant behaviour with ensuring that business remains willing to enter the market and/or take sensible commercial risks.

Q34 Where parallel criminal and civil pecuniary penalties target the same conduct or breach, is it ever appropriate for maximum civil pecuniary penalties to be higher than the equivalent maximum monetary criminal penalty?

Q35 In what circumstances should Acts contain guidance as to when to impose a civil pecuniary penalty, and what should that guidance be?

Q36 Are there difficulties in providing for a “threshold” of seriousness as in the Takeovers Act 1993?

Q37 Do you agree that civil pecuniary penalty statutes should include guidance for courts as to the setting of the level of a penalty?

Q38 Is there a core list of factors that could be set out in legislation for courts to take into account when determining the quantum of a penalty and if so, what should it include? What other additional factors are or are not relevant?

Q39 To what extent should courts draw on criminal sentencing practice when determining the quantum of a penalty?

Q40 Do you agree that appeals from civil pecuniary penalties should continue to be brought under the broadly framed right in s 66 of the Judicature Act 1908?

Q41 Do you agree that civil pecuniary penalty statutes should deal expressly with the issue of limitation?

Q42 Do you agree that guidance should be provided to policy makers on the matters influencing the choice of limitation periods?

Q43 Should we recommend the addition to the Legislation Advisory Committee Guidelines of a chapter relating to civil pecuniary penalties? Are there any other forms of guidance that would assist?

Q44 Is there a need for (a) legislation to amend existing civil pecuniary penalty regimes to ensure that they are principled and consistent; and/or (b) a set of standard civil pecuniary penalty statutory provisions?