Legal Dilemma: Regulatory Offences Finding its Position in Criminal Law

Prerna Deep[1]

 1. Introduction

Regulatory offences are illegal wrongdoings because of breaches of a legal framework; they might not be inherently wrong. In general, they are focused on deterring harm to the public and not a private individual.[2] The term ‘Regulatory Offences’ is often used for certain offences in English and Welsh criminal law that are not considered by some academics to be ‘true crimes.’[3] These researchers believe that violations of technical regulations should not result in criminal penalties because they are concerned with regulation, rather than morally repugnant activities. However, the complex and diverse stances on regulatory offences make them intricately intertwined with criminal laws as discussed in the subsequent sections of the article.

This article highlights the concept and functioning of regulatory offences and examines certain features that might distinguish criminal offences and regulatory offences and addresses the problems associated with treating regulatory offences as part of criminal law. It also analyses the placing of regulatory offences in the German legal system to understand whether a separate category would function in the English Legal system. The article further argues and concludes that regulatory transgressions should be treated and classified as a category of separate wrongdoings and not within the scope of criminal law.


2. The Legal Dilemma

A) Interpreting Criminal Law vis-à-vis Regulatory Offences

It is pertinent to understand the dissimilarities and similarities between regulatory offences and criminal law to analyse whether the former can be a part of the latter or a separate category. Criminal liability is often stigmatised and is associated with morality and ethical wrongs. It is also considered the most potent condemnation a community adopts;[4] it is imperative to follow the principles of natural justice in case of criminal laws; however, regulatory offences often do not require following principles of natural justice[5], including fair notice and due process in prosecution. Natural justice is not adequately defined in English law; however, the concept of natural justice comes from judicial precedents.[6]Regulatory offences are not associated with the moral disposition and wrong tagged with the traditional criminal offences but constitute the wrong of a particular activity.[7] For instance, a criminal offence like rape would be considered morally deplorable in general while a breach of traffic regulation like speeding would not have similar moral cadence.

Three key characteristics (strict liability, omissions liability, and reverse onus provisions for acquittal) are commonly found in regulatory offences.[8] The provision of strict liability makes any person liable for the damages and injuries caused by them, irrespective of their guilt.[9] It is asserted that in the domain of regulatory offences, strict liability is being found in many ways, such as transportation of dangerous goods and worker health and safety among others. An accused must disapprove of the presence of an element of crime on the balance of probabilities in terms of the reverse onus provision.[10] It is submitted that in terms of regulatory offences, a defence of taken ‘due diligence care’ could be a form of discharging the burden of reverse onus. A liability imposed for failure to act is an omission liability.[11] In contrast, the same features are considered exceptional in traditional criminal law, as mens rea is of paramount importance in contrast to strict liability. Omissions are an exception, and ‘one golden thread’ binding the criminal justice system is the duty of the prosecution to prove the guilt of the accused beyond a reasonable doubt.[12] The next sub-section gives a detailed account of the differences and problems of clubbing criminal offences and regulatory offences together.

B) Analysing differential treatment of offences and punishment between regulatory offences and criminal offences

A vexing question that arises from the differential treatment of offences and punishment between regulatory offences and criminal offences within criminal law is the fate of the offender who commits a crime of similar nature and gravity. To what extent is it just that a person who falls within the scope of regulatory offences under criminal law is left with a warning of compliance? In contrast, someone who falls within the purview of traditional criminal law is prosecuted for the same. Ashworth argues that the least a person could do is be aware of the laws and regulations associated with his particular activity, for example, business[13], however, in-depth research[14] by James Chalmer and Fiona Leverick highlights the lacunae of this argument as they argue it is difficult enough for legally qualified lawyers to find such laws, then the burden of the same on the general population if not a far-fetched idea at least a troublesome herculean task. Regulatory offences are often not publicised enough, these are not easily available or accessible and the general public is generally unaware of their small actions warranting criminal prosecution and the trauma accompanied by it. For example, one part of the regulation would be available in one document, and the other part would be in an annex to another regulation, making it harder for the general public to make themselves acquainted with the regulatory norms.

There is also a fear of weakening the stigma and deterrent effect associated with criminal law if criminal prosecution in the form of regulatory offences is easily instituted all the time for offences that are often not condemned by society at large[15] as people could stop seeing criminal law as a significant censure.


3. Regulatory Offences as a Separate Category of Offences

A) Defining Regulatory Offences

Regulatory offences are not concretely defined anywhere in the United Kingdom though several legal scholars have attempted to come up with definitions, for instance, “Regulatory offences are described as being ‘part of statutory schemes for the regulation of certain spheres of social or commercial activity’; as being ‘generally enforced by the regulatory authority rather than the police’”.[16] Lord William of Mostyn opined that criminal law should be involved when the behaviour is dangerous enough, and criminal intervention is deemed necessary under those circumstances.[17] It is argued that in those circumstances where one commits an offence that could be considered not severe enough (as illustrated in the preceding paragraphs) to demand criminal prosecution, regulatory offences as a separate category should come into play as a less coercive machinery. Regulatory offences are apt to regulate wrongful conduct that requires compliance or could be done away with reprimanding. Regulatory authorities have their aims and systems in place that emphasise compliance with the guidelines and regulations than giving punishment in case of breach of such guidelines.[18] Generally, regulatory offences are a way of enforcement mechanism of the regulatory bodies, which introduces the quality of a certain degree of conduct in a specific area of action.[19] For instance, following the traffic rules and regulations are in a way an enforcement mechanism that enables the government to ensure that the safety of people are taken care of and roadway accidents are reduced. Social utility (using the previously cited example of public safety on roadways) is often the focal point giving rise to regulatory offences.[20] Not following the mandate while pursuing these activities is deemed threatening to the society at large, and the purpose of the regulatory offences authorities is to diminish or prevent these threats[21] as it can be witnessed from the traffic regulation example cited above. If people do not follow the traffic regulation, prima facie, it might not look like a heinous crime, but the repercussions of not following the regulations can be a threat to the safety of the public at large on the roadways. It is submitted that on the basis of the characteristics of traffic regulations as discussed above they could be placed within regulatory offences.

B) Regulatory Offences in the German Legal System

This article now proceeds to comprehend the German legal system with respect to regulatory offences to seek an understanding of how regulatory offences can be functional as a separate category of offences and if the English criminal law should consider the same. The German system witnessed a change when some crimes (Straftaten) were moved to separate regulatory offences (Ordnungswidrigkeiten), and financial penalties (Geldstrafen) transformed into administrative penalties (Geldbussen).[22] What sets apart these regulatory offences from ‘true crimes’ is the societal censure and condemnation attracted to the real crimes that are missing in regulatory crimes. The procedure of administrative penalties is more straightforward, quicker, and more accessible; however, if the alleged offender objects to Geldbussen, then the matter will be decided in criminal court. This development has helped the government promote a cost-effective mechanism[23] that allows deterrence without the overbearing formalities, stigma, and safeguards associated with criminal prosecution[24]. As it has been argued in the earlier part of the article that a regulatory offence is an offence that does not reach the punishable prohibited range of a criminal offence, but appears worthy of retribution. For instance, in German Law, Keeping Dangerous Animals (§ 121 OWiG)[25] and Total intoxication (§ 122 OWiG)[26]are part of regulatory offences. Traffic law is another wrongdoing that can fall within the ambit of this, as  has been argued in the previous section of the article.

Even within the English criminal jurisprudence, some scholars keep the regulatory offences in the category of administrative penalties.[27] Duff believes that it is not appropriate to term these administrative penalties as wrongs,[28]and this could also be seen as a distinguishing element between the true-crime and regulatory offences. Likewise, Tadros feels penalties have no deterrence effect or motive,[29] unlike the real criminal liability, and should be distinguished from the same. Based on the illustration of the German legal system and the scholarship discussed above, it is argued that English law should also consider following similar footsteps as the German legal system and promote administrative offences or regulatory offences as a functional category, and the punishment limited to this category should be a financial penalty.

C) Determining the Scope of Regulatory Offences

Another facet of these not so apparent offences is their limited utility. They are mostly used as a medium of threat for compliance than actual, punitive discourse.[30] There are more deeply seated problems with these offences like where the State invests time, labour, and money in the creation and compliance of these offences; however, they are rarely used for those purposes. Section 8 of the Asylum and Immigration Act, 1996, United Kingdom prohibiting the working of illegal migrants witnessed only one prosecution between 1998 and 2004.[31] Excluding vehicular motor offences, the Crown Court tried only 1.5 to 2% regulatory offences.[32] Ayres and Braithwaite discuss a ‘pyramid of regulatory strategies’ that rates criminal sanction as an impactful but least used penalty and persuasion or attempt to encourage compliance as the least deterrent and most used method.[33]


4. Conclusion

In light of the arguments advanced and principles questioned, the article concludes that though the regulatory offences are aimed to be placed within criminal law, it has led to more ambivalence and created vague notions about criminal liability and seriousness of offences. It is also often associated with unduly increasing the financial and economic liability of the criminal justice system for a negligible result in the form of a minuscule fine or reprimand. Criminal law should be present at the upper tier of the hierarchy of offences with regulatory and civil offences. It should be restricted to address grave offences, severe and notorious non-compliance cases, and regulatory offences should be treated separately for low-level crimes or offences.

It is contended that regulatory offences should be kept on the periphery of criminal law as separate kinds of offences with their ethos, aims, and enforcement and it should be used as a last resort in cases where other methods have failed, and the gravity of the offence demands criminal prosecution. Criminal law should be rightly used when the stakes are higher; this will also make it a cost-effective procedure for the State. Hence, it can also be inferred that if such low-level crimes and offences are removed from the scope of criminal law to a separate category of regulatory offences, it will do justice to the parties – both defendant and the regulator.[34]


[1] Law Clerk-cum-Research Assistant at the Supreme Court of India.

[2] Antony Duff, ‘Perversions and Subversions of Criminal Law’ in Duff et al (eds), The Boundaries of the Criminal Law (2010).

[3] Ibid; see also, Andrew Ashworth, ‘Ignorance of the Criminal Law, and Duties to Avoid It: Ignorance of the Criminal Law, and Duties to Avoid It’ (2011) 74 The Modern Law Review 1.

[4] Ibid.

[5] Ibid.

[6] Vionet v Barrett (1885) 55 LJ RB 39; Hopkins v Smethwick Local Board of Health (1890) 24 QB 713.

[7] Stuart P Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (OUP 2006).

[8] Duff (n2); Ashworth (n3).

[9] Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford University Press, 1996; online ed, Oxford Academic, 22 March 2012).

[10]  Jackson Allen, ‘Rethinking the relationship between reverse burdens and the presumption of innocence’ (2021) 25 The International Journal of Evidence & Proof 2.

[11] Ashworth (n3).

[12] Ibid.

[13] Ibid.

[14] James Chalmers and Fiona Leverick, ‘Quantifying Criminalization’ in RA Duff et al (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014).

[15] Jeremy Horder, ‘Bureaucratic ‘Criminal’ Law: Too Much of a Bad Thing?’ in Duff RA et al (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014).

[16] Ashworth (n3).

[17] Ibid.

[18] Keith Hawkins, Environment and Enforcement: Regulation and the Social Definition of Pollution (Clarendon Press; Oxford University Press 1984).

[19] Law Commission Consultation Paper No. 195 (2010), Criminal Law in Regulatory Contexts.

[20] Anthony Ogus, ‘Regulation and its Relationship with the Criminal Justice Process’ in Quirk H. et al. (eds.), Regulation and Criminal Justice: Innovations in Policy and Research (CUP 2014).

[21] Peter Ramsay, ‘The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State’ (2006) 69 Modern Law Review 29.

[22] Thomas Weigend, ‘The Legal and Practical Problems Posed by the Difference between Criminal Law and Administrative Penal Law’ (1988) 59 Revue Internationale de Droit Pénal 67.

[23] Lauko v Slovakia (2001) 33 EHRR 40.

[24] (n 19).

[25] Act on Regulatory Offences [1987] German Federal Law Gazette I, p. 4607, s 121.

[26] Ibid at s 122.

[27] (n15).

[28] Ibid.

[29] Victor Tadros, ‘Criminalisation and Regulation’, in Duff et al. (eds.), The Boundaries of the Criminal Law (OUP 2009) at 174.

[30] James Chalmers and Fiona Leverick, ‘Criminal Law in the Shadows: Creating Offences in Delegated Legislation’ (2018) 38 Legal Studies 221.

[31] Law Commission (n19).

[32] Ibid.

[33] Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press 1992).

[34] (n19).