Criminal Liability in Regulatory Contexts Responses - Law ...

Central England Trading Standards Authorities (CETSA) and West Midlands
Region County Chief Environmental Health Officers Group
1.1258 Except in cases that involve fraud, it is very difficult to prove consent, connivance
or even neglect by a director to a standard that most local authority lawyers
would accept makes the person culpable. Hence, these provisions are seldom
used. On this basis, we believe the principles behind these provisions are
probably quite reasonable. In fraud cases it is clear that action against a director
is appropriate.
1.1259 Q3: “negligently failing to prevent” is broadly the same test as “neglect” in some
existing legislation. We agree that this is a more appropriately worded offence
than the director being guilty of the primary offence and would accept that it could
replace existing "neglect" equivalent provisions.
1.1260 Q4: seems to be similar to question 3. We agree that the wording of this offence
(failing to prevent) would be more appropriate in many cases than if the owner of
the business were to be prosecuted for the primary offence.
Ivan Krolick
1.1261 Yes. However, I’m not sure that the situation would arise. If the person consents
or connives at the commission of an offence, then negligence is irrelevant.
Section 285 Copyright, Designs and Patents Act 1988 makes express provision
for the criminal liability of partners. Where a partnership commits a relevant
offence, all partners are criminally liable with the partnership, except for any
partner who proves that he was ignorant of the commission of the offence, or who
tried to prevent it from occurring. It is also a moot point whether the proposal
should apply to a criminal offence which has negligence as an element.
1.1262 Q 3: No, unless the offence is one in which negligence is an element. Unless
there are particular circumstances which require it, and express provision is
made in the statute creating the offence, the criminal law should not punish a
person who negligently fails to prevent an offence. Moreover there is no reason
to distinguish a company from a partnership or a sole trader who employs others.
In principle. why should the director of a company be criminally liable for failing to
prevent the commission of an offence, whereas the same person (who carried
out the same business, but under his own name) would not be criminally liable?
And if the suggestion was extended to all employers, why should it not extend to
any person who has control of others or is in a position to prevent a crime?
1.1263 Q 4: As drafted the suggested replacement offence appears to be an absolute
offence, and I cannot see any difference between this and the doctrine of
delegation. I can see a situation where the person wishes to divest himself of
responsibility by delegating his legal responsibilities to a person who he knows to
be inadequate. I suspect that this is one of those situations where individual
statutes can make express provision for the license holder (or whatever) to
remain liable for any acts of a person to whom he negligently delegates the
responsibility of ensuring that the statutory provision is complied with. The
negligence can be held to be in respect of the choice of person or the manner of
delegation.
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