Criminal Liability in Regulatory Contexts Responses - Law ...

1.1012 We note that generally legislation on corporate liability in recent years has moved
towards a “failure to prevent” offence. The Bribery Act 2010 is one such example
as it introduces a corporate “failure to prevent bribery” offence where an
employee or associated person has been convicted or a bribery offence.
1.1013 We would also note that the FSA also has “systems and controls” rules which can
be cited against firms for failing to prevent breaches of FSA rules.
Judges of the Court of Session
1.1014 We agree that legislation should be specific and that if provisions are not specific
then the statute must be interpreted. We do not understand the mechanism
proposed for encouraging courts to take a particular stance on interpretation. We
appreciate the difficulties with the doctrine of identification but are not of the view
that it can be abolished in this fashion.
Food Standards Agency
1.1015 Already have provisions. Proposal seems to ignore/plays down influence of
senior managers in the way corporate bodies behave and thus in conflict with
ethos of Corporate Manslaughter Act.
City of London Law Society
1.1016 We feel strongly that legislation should include specific provisions to indicate the
basis on which companies may be found liable. It would be helpful if there were
a broad consensus on this so that a different approach is not taken from one
statute to another. Leaving this to the courts as a matter of statutory
interpretation is undesirable as it means companies cannot know in advance
what action to take or avoid in order to avoid committing an offence. We agree
that there are difficulties with the identification doctrine.
The Law Society
1.1017 We agree that there are difficulties with the identification doctrine and that this
can make it difficult to prosecute companies. We feel strongly that legislation
should include specific provisions to indicate the basis on which companies may
be found liable. It would be helpful if there were a broad consensus on this so
that a different approach is not taken from one statute to another. Leaving this to
the courts as a matter of statutory interpretation is undesirable as it means
companies cannot know in advance what action to take or avoid in order to avoid
committing an offence.
1.1018 If it is decided not to include specific provisions in legislation to indicate the basis
on which companies may be found liable, we suggest that, to ensure consistency,
predictability of the application of the law and assistance to the courts, there
should be some guidance provided on how to interpret statutes to determine
whether the identification doctrine applies or not and if it does not apply then how
liability would be established. This guidance should be consulted on before being
finalised.
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