The purpose of this chapter is to provide an overview of the nature of regulation and its relationship with the criminal justice process. I begin with a short exploration of the meaning of ‘regulation’ and its (generally agreed) characteristics. I then proceed to show how the enforcement of regulation, so understood, potentially involves both administrative and criminal justice processes. The main part of the chapter will be a comparison of those processes as regards principles of liability, sanctions, institutions and procedures. In addressing the normative question of when use of the criminal justice process may be justified in relation to regulatory contraventions, I adopt a predominantly economic perspective. The use of economics to analyse law and legal institutions has generated major insights for legal scholarship (Ogus 2006) but is, perhaps, still insufficiently familiar to those working in the field of criminal justice.

The nature of regulation

‘Regulation is a phenomenon that is notoriously difficult to define with clarity and precision, as its meaning and the scope of its inquiry are unsettled and contested’ (Morgan and Yeung 2007: 3. For an elaborate discussion, see Mitnick 1980: ch. 1). I define regulation by reference to its politico-economic significance, its essential characteristic being that of public governance. The state intervenes in the market to override individual preferences and private governance, arising from property and market transactions (Ogus 2004b: 1–4 and 2006: 83–6).