12.14The Law Commission does not consider that pecuniary penalty proceedings should take place within the criminal jurisdiction of the courts. At present, the alternative that presents itself is the civil jurisdiction, which brings with it the rules of civil evidence and procedure. But those rules of evidence and procedure were not designed with a State-imposed penalty in mind. Pecuniary penalties therefore differ from the forms of proceeding for which the rules are most apt.
If in any civil proceedings any question arises as to the application of any provision of these rules, the court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks just.
12.16This rule arguably provides judges with sufficient scope to depart from particular High Court rules where, given the nature of the proceedings, they will lead to unfairness. On balance, then, we propose that the civil rules of evidence and procedure should continue to apply.
12.17This approach is probably achieved by the standard formulation in section 509, set out above. We are not persuaded that the term “usual” is necessary, and it is possible that it is liable to confuse. However, it appears that even with the inclusion of that word, the majority of submitters have faith in the courts’ ability to adapt the civil procedural rules in a manner appropriate to the nature of pecuniary penalty proceedings.
12.18For completeness, we note that a direction like that in section 43V of the Securities Markets Act 1988 is unlikely ever to be appropriate. We also see no need for additional provisions relating to the ordering of discovery and interrogatories.
12.20As suggested in Chapter 9, there may be a case for the Rules Committee to consider whether the High Court Rules have adequate flexibility for courts to deal with pecuniary penalties and similar sorts of orders, or whether a tailored process could be devised.
G9 Civil rules of court procedure and evidence should apply to pecuniary penalty proceedings
Pecuniary penalty proceedings take place in the civil courts, where the civil rules of procedure and evidence apply.
Nevertheless, policymakers should always consider potential problems with applying standard civil rules to proposed new punitive or coercive orders. Consideration should be given to whether tailored rules are required to balance principles of fairness, regulatory efficiency and certainty.