‘It's Not a Criminal Offence’—or Is It? Thornton's Analysis of ‘Penal Provisions’ and the Drafting of ‘Civil Penalties’

摘要

This article considers the assertion recently made by the former Attorney-General that ‘civil penalties’ are ‘not criminal offences’. It does this by employing Thornton's analysis of how criminal offences are drafted, examining some difficulties with it, which allow a slight refining of it. It then applies this refined version to three civil penalties, in tax law, immigration law, and parking law, respectively. It concludes that criminal offences and civil penalties are two essentially similar forms of statutory prohibition. The only difference between them is thus in the mode of enforcement. The former is enforced through the more or less coherent body of criminal procedure, and the general safeguards it contains. The latter is enforced through various ad hoc procedures, and by institutions other than those of criminal justice. Thus, the question is raised as to whether general procedural safeguards should be developed for civil penalties, or whether the alternative approach of the Regulatory Enforcement and Sanctions Act 2008, using essentially highly formalized plea bargains like road traffic conditional offers instead, should be preferred.