Part 2: The nature and role of pecuniary penalties

Chapter 4: Nature of pecuniary penalties

16In Chapter 4, we make the point that pecuniary penalties should be designed according to an accurate and principled conceptualisation of their nature. That conceptualisation needs to be independent of the existing regimes where they are found. This is especially important as their use across the statute book expands, which we predict it is likely to do.

17Chapter 4 identifies the following as being fundamental features of pecuniary penalties:

18Although they do not result in a criminal conviction, pecuniary penalties are a grave form of state-imposed punishment. Their design needs to give appropriate recognition to the potential imbalance between the parties concerned. Moreover, procedural protections should not be designed with the best-armed and most capable defendant in mind. Rather, they should protect the potentially vulnerable. However, we also note that this does not mean that the relaxation of procedural protections would never be warranted, depending on the particular needs of some regimes.

Chapter 5: Role of pecuniary penaltiesTop

19Policymakers who are deciding whether or not to include pecuniary penalties in a statute should consider pecuniary penalties alongside all the other main forms of penalty that could be included in the regime. What is required is a robust and transparent analysis of the circumstances when each form of penalty would be appropriate. When weighing the appropriateness of different forms of penalty policymakers should consider the following:

20Merely stating that a legislative regime is “regulatory” in nature is an inadequate justification for using pecuniary penalties to enforce it.