Chapter 15
Regulation of business by the criminal law
We begin this chapter by considering the nature of criminal liability. We then consider
several areas in which the law regulates business by the imposition of criminal liability.The nature of criminal liability
Generally, criminal offences are made up of two elements, an actus reusand a mens rea. The
actus reusis often defined as the guilty act, whereas the mens reais defined as the guilty
mind. The prosecution must prove both the actus reusof an offence and the mens reabeyond
a reasonable doubt.
Homicide provides an easily understood example of what is meant by actus reusand
mens rea. The actus reusof both murder and manslaughter is the same. For both crimes, the
accused must voluntarily and unlawfully cause the death of another human being. It is the
different mens reaof the two crimes which distinguishes them. The mens reaof murder is that
the accused either intended to kill or intended to cause grievous bodily harm. The mens rea
of manslaughter is that the death was caused by the accused acting in a grossly negligent or
reckless manner, but without the mens reanecessary for murder. (There are also several
defences which reduce murder to voluntary manslaughter.)
Most mens reaconsist of intention or recklessness. However, Parliament has created a
number of offences of strict liability, where the prosecution do not need to prove mens rea
in respect of one or more elements of the actus reus. As we shall see, the main offence cre-
ated by the Consumer Protection from Unfair Trading Regulations 2008 is an offence of
strict liability.The Consumer Protection from Unfair Trading
Regulations 2008
These Regulations, which implement an EU Directive, make it an offence to engage in an
unfair commercial practice. They represent a huge change in the criminal law relating to
commercial consumer practices. Forty statutes have been repealed or amended, as have
thirty-five statutory instruments. Amongst the statutes repealed are the Trade Descriptions
Act 1968 and the Consumer Protection Act 1987, in so far as it applied to misleading price
indications.
Before considering the regulations in detail, it is important to note that they are limited
in two ways. First, they create criminal offences but they do not directly give a consumer