The role of criminal sanctions in consumer
In the previous chapters, it was argued that the civil law plays an important role in the protection of the consumer, but suffers from limitations which make intervention from the state desirable. English law has tended to use the criminal sanction as the prime method of protecting the consumer, with the creation of new offences a frequent response to consumer problems. This chapter examines the place of the criminal law in society, with particular reference to regulatory offences and consumer protection. It begins by examining when conduct is properly classified as criminal, and when conduct should be classed as criminal. It then considers the main theories of punishment, and thereby seeks to explain what criminal law seeks to achieve by punishing the defendant. Finally, the chapter considers the extent to which there is a separate category of law, known as regulatory crime, and the extent to which consumer law is part of such a category.
There are two important questions which are sometimes confused by commentators: first when is something criminal, and secondly when should something be criminal? As Smith and Hogan have commented, 'writers who set out to define a crime by reference to the nature of the act … inevitably end by telling us, not what a crime is, but what the writer thinks it ought to be; and that is not a definition of a crime'.1 We can adopt an institutional approach to the first question by saying that it is criminal when it is deemed to be so by the law-maker. We can identify it as criminal by seeing that it is enforced by the state by prosecution in the magistrates' or Crown Court, and with the standard of proof of____________________