Criminal Liability in Regulatory Contexts Responses - Law ...

1.1033 We are however of the opinion that the existing approach taken by the courts
which is to presume the identification doctrine applies should continue. We
acknowledge that the courts have adopted a degree of flexibility in the application
of the doctrine with regard to the legislative context. We are of the opinion that
the courts have regard to statutory interpretation (e.g. the purpose of legislation
and the practical implications) when applying the identification doctrine and do
not consider it necessary to encourage the courts to alter this approach. We
believe however that the proposition may have limited effect as far as Local
Authorities are concerned.
The Faculty of Advocates
1.1034 The basis of criminal responsibility on the part of companies is neither entirely
clear nor entirely coherent. The question is one which ought to be approached
from the point of view of principle and, whilst we agree with the proposal that
legislation should indicate the basis of liability in any particular care, we think that
this should be set within a general, coherent, framework of principle. It was the
doctrine of identification which was applied in Transco plc v HM Advocate 2004
SCR 1.
1.1035 The criminal responsibility of bodies corporate has received attention at Council
of Europe level, partly as a result of conceptual difficulties which civilian
jurisdictions have encountered in complying with international and European
obligations, in terms of which they are required to impose criminal liability on
“legal persons”. In a regulatory context in particular, where increasing numbers of
the businesses regulated operate across national boundaries, it seems that it
might be desirable to ensure that the principles applied in the UK are consistent
with those applicable elsewhere. Article 18 of the Council of Europe Criminal Law
Convention on Corruption offers a formula which has proved acceptable to over
40 European states, including the UK, and which might therefore provide a useful
starting point for consideration.
Central England Trading Standards Authorities (CETSA) and West Midlands
Region County Chief Environmental Health Officers Group
1.1036 It is a good idea to address the issue of corporate liability for criminal offences.
From the consultation paper, it is apparent that the law does need a review. We
agree that the liability of the company (and of its officers and employees) should,
in general, be made clear in the legislation. From the point of view of clarity and
certainty we do not like the idea that this be left as a matter of statutory
interpretation for the courts. Clear principles as to how mens rea is to be
attributed to the controlling mind of companies would always be preferable.
197