Criminal Liability in Regulatory Contexts Responses - Law ...

QEB Hollis Whiteman Chambers
1.1023 Agree that, where possible, statutes would set out the basis on which companies
may be found liable. We cautiously agree with the Law Commission’s analysis of
the doctrine of identification. We do not wish the principles of clarity and
consistency to be sacrificed at the expense of widening corporate liability.
Professor Colin Reid, University of Dundee
1.1024 It would be very welcome indeed for legislation to be clearer on the basis for
corporate liability and the move away from the universal application of the
identification principle is welcome.
Association of Chief Trading Standards Officers (ACTSO)
1.1025 Agree that it can be difficult to prove offences against large companies where
proof of fault of a member of controlling mind is required. Can significantly
impede delivery of regulatory outcomes. Clarity and consistency is important, and
agree that legislation should indicate basis on which companies can be found
liable for criminal offences.
Trading Standards Institute (TSI)
1.1026 TSSs often experience difficulties in deciding fault on the controlling mind of the
company and any legislation which promotes greater transparency in this respect
would be welcome. This will save time and money in investigations, whether they
are civil or criminal.
Sir Richard Buxton
1.1027 Objections to doctrine well-recognised and unlikely to be challenged.
Unfortunately doctrine and Tesco v Nattrass remains binding law (see dissent in
Odyssey v OIC Run-Off [2001] 1 Lloyds Rep Insurance and Reinsurance 1 at 93-
96). As a general rule for criminal liability, Meridian is almost as bad but different
reason – not a criminal case; almost all authority discussed involved civil issues;
and court (containing no one with expert knowledge of English criminal law)
never grappled with general issues of criminal liability. General approach that
court should decide whether a statute applies to corporations rather than
individuals and how it applies by construing individual statute may possible be all
very well for market-regulating provisions such as in Meridian but not for criminal
liability. Where legislation takes form of saying conduct x is forbidden, without
saying expressly whether or not prohibition extends to conduct x when committed
by a company, it will always be the policy of the legislation that the conduct
prohibited is covered by legislation. Nature of crime-creating legislation. Doubters
(who continue to support Meridian) may want to take criminal statutes and
demonstrate how construction approach would operate to reach a different
decision in some cases rather than others.
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