The prevention of the sale of potentially harmful consumer products to children has resulted in criminal liability for traders and a host of individual pieces of legislation with different elements, whether it be the offences, defences, enforcement and penalties. Age restricted sales of tobacco, fireworks, intoxicating substances, knives, tattoos, animals, videos, lottery, sun beds and the list goes on, are all dealt with under different pieces of legislation and regulation and the individual parts of that legislation need to be carefully considered in respect of each offence.  It is an offence to sell aerosol spray paint to a person under 16 and this carries a Level 2 fine on the standard scale.  The sale of cigarette lighter refills is an offence if the person is under the age of 18 and this carries a Level 5 scale. Indoor fireworks such as Christmas Crackers and party poppers must not be sold to a person under 16 whilst garden fireworks are completed banned from sale to the public.  It is an offence to tattoo a person under the age of 18 and an offence to sell a lottery ticket to a person who has not attained the age of 16.  It is no surprise that there have been calls for some time to simplify and consolidate age restricted sales into a single piece of legislation and to provide businesses and employees with a simple due diligence defence across product categories.  Where a genuine and reasonable mistake has been made in judging the age of an individual the business owner should have a defence to a criminal action.

The criminality of regulatory business matters is an area being considered by the Government with the aim of reducing regulation and ensuring that formal enforcement is seen as a last resort.  De-regulation and less heavy handed enforcement appears to be part of the government economic growth strategy.  Existing regulation needs to become more risk based and where possible, decriminalised.

We have seen the "red tape challenge", a website where the public can have its say on matters relating to regulation and enforcement.

In April of this year the government published a policy statement entitled "One In, One Out, Statement of New Regulation". namely every time a department wants to introduce a regulatory measure it has to work out the cost on business and if it can lose a regulatory measure of the same cost.  The government has published the document "Transforming Regulatory Enforcement: freeing up business growth", a consultation document, consultation to close on the 15th September 2011. Its purpose is stated as being to reform the way in which regulation is enforced on the front line. The theme is one of ratcheting down enforcement to allow businesses to spend less time and money on dealing with enforcement issues.  There is also a proposal to put in place mechanisms giving businesses the opportunity to challenge Regulators and Enforcement Officers as a routine part of the system.  How frustrating is it for business owners to have to deal with criminal proceedings which are disproportionate to the offence that has occurred. How often is it that an underage test purchaser arrives at a bar when it is 3 deep with the manager collecting glasses and an inexperienced person behind the bar, under pressure, and forgetting simple rules in respect of which they have been trained.  This may be the first offence of that business but nonetheless the business owner finds himself in court and a black mark against his licence and always the threat of a licence review in a business which has become ever more difficult to police.  This can be even though the written policies of the particular authority promote court action as a last resort.

Whatever the outcome, it is clear that regulation and enforcement is not working effectively and that reform is required.

LEGLISLATION APPLICABLE IN ENGLAND AND WALES