Regulatory Crime: History, Functions, Problems, Solutions

Abstract

This paper offers a response to concerns that have been expressed in Ireland about the growth in the use of criminal law as an instrument for empowering state agencies to investigate and prosecute breaches of regulatory rules. The criticism appears to be concerned not only with the diffuse enforcement of regulatory crime but also with the risks to the essential character of criminal law associated with the growth of strict liability offences. I argue in the paper that diffuse criminal law enforcement goes back many centuries and pre-dates modern attempts to centralise the enforcement of crimes against person and property in the office of the Director of Public Prosecution. Similarly the emphasis on the mental element in contemporary criminal law is relatively modern. This argument does not take away from real concerns that the bifurcation of criminal law between ‘regulatory’ and ‘real’ crime creates problems. I discuss the potential for greater use of administrative penalties for breaches of regulatory rules, but conclude that such an approach is never likely to offer a complete solution to enforcement within regulatory regimes. Whatever may happen with the development of administrative penalties we are likely to be stuck with the presence of a range of serious strict liability offences, policed by specialized agencies. Accordingly a richer mutual understanding of the traditional and regulatory worlds of criminal law will be required.