Criminal Liability in Regulatory Contexts Responses - Law ...

Trading Standards North West (TSNW)
1.1042 Most legislation enforced by trading standards officers is strict liability, so the
doctrine of identification is rarely encountered especially since s 14 of the Trade
Descriptions Act 1968 was repealed.
Kingsley Napley LLP
1.1043 The courts have long recognised that the strict application of the doctrine of
identification in corporate prosecutions gives rise to unjustified disparity between
small companies, in which the directing and controlling mind can be readily
identified and larger companies, in which responsibilities and decision-making
has been devolved. It is agreed that this disparity should be addressed but it is
unclear exactly how it is suggested this should be resolved.
1.1044 In cases in which an individual director’s actions have taken place within the
context of the company’s agreed priorities and strategy, it is often more important
that the corporate body is fully investigated and where appropriate, held to
account. In our experience, we have encountered situations where the corporate
boy has been able to reply upon the actions of individuals within the company in
the face of clear evidence of the board’s agreement and involvement in the court
of criminal conduct.
1.1045 Whilst we agree with the difficulties identified by the Commission with the current
law, we do not believe that the above proposal to “encourage the court not to
presume the application of the doctrine of identification” adequately resolves
those difficulties. In particular, it cannot provide the necessary level of certainty
required with respect to potential criminal liability.
Criminal Bar Association and Bar Council
1.1046 Rational of proposal best understood from reading CP 5.103. In respect of
regulatory regimes involving frequent prosecution there is settled case law that
provides certainty and an unquestionable basis for interpretation of future
statutory provisions enacted within these regimes. Thus, the personal nature of
health and safety duties is well established as is the manner in which this impacts
upon corporations (R v Associated Octel [1996] 1 WLR 1543 and R v Chargot
[2008] UKHL 73). In relation to environmental offences, again liability arises in
respect of a corporation through its operation or undertaking, thus by the acts or
omissions of its employees and agents.
1.1047 There are difficulties posed by the adoption in future legislation of specific
provisions regarding the basis for corporate liability. A company is only one type
of person subject to duties, albeit the common form adopted by businesses.
However, there are many more forms, such as partnerships, joint ventures,
trusts, associations whose structure will be wholly different to a company.
Furthermore, there is increasing variety and uncertainty in the form and status of
employment and employees: many companies may be dutyholders but have no
employees or have entered into business agreements where the scope of agency
is defined. Any specific provision as to the basis for corporate liability may risk
prescription and encourage the creation of structures aimed at avoidance.
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