Criminal Liability in Regulatory Contexts Responses - Law ...

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CBI 1.1264 We broadly agree. This approach is consistent with an approach to liability being based on knowledge or recklessness, and not negligence, which we welcome. 1.1265 Q3: No. A test of knowledge or recklessness as discussed elsewhere is more appropriate and should be the basis of any criminal liability, and not negligence. 1.1266 Also offences involving positive obligations on a person, including omission to do something he should have done (if relevant and appropriate in a particular case or circumstance) are strongly preferred to offences of failure to prevent something, when a failure to prevent something could wholly or partially to a material extent be out of that person’s control. 1.1267 A director’s duties are owed to the company of which he is the director. If the director has been negligent in performing his duties to the company, that should be a matter for the company to pursue with the director, and should not normally be a matter for the criminal law. 1.1268 Q4: It may be appropriate that there should be criminal liability in the circumstances when the delegation doctrine applies, such as when a clearly unsuitable person is placed in charge of something by his principal or employer. 1.1269 However the criminal offence is better framed in ways other than a failure to prevent something, to something imposing obligations, and a requirement for knowledge or recklessness. East of England Trading Standards Association 1.1270 We do not consider that “neglect” should be removed in such circumstances. In our view the correct way of reflecting the difference in culpability is through a coherent sentencing policy. 1.1271 Q3: See response to proposal 16. However if the current offence of “neglect” were to be abolished then we consider that it should be replaced with the suggested offence. 1.1272 Q4: We do not agree with the suggested abolition of the doctrine of delegation, therefore we do not see the need for the creation of the suggested replacement offence. 234
Institute of Employment Rights 1.1273 There are some general principles that we wish to raise which are generally overlooked in the legal commentaries provided by the Law Commission. The general effect of the criminal law as it is applied to the corporation is to establish a de facto corporate veil. That is to say, in a way analogous to civil and corporate law, the corporation can effectively absorb criminal punishment, normally in the form of a fine, while its directors and senior managers are relatively rarely exposed to sanction. Previous research by the authors of this response has noted that between 1980 and 2004, eleven directors were convicted for manslaughter; of those, five were imprisoned, one received a community sentence and five were given suspended sentences; the average for those who were given custodial sentences approximated to two and a half years. 32 1.1274 A situation where no ‘omission’ or ‘failure to act’ on the part of an individual can form the basis of criminal liability, in the absence of a positive legal duty on the part of the individual, remains a significant source of impunity for directors and senior managers. This rule is very significant in relation to directors because most allegations against them relate to their failures and omissions and not to their actions, while company directors have no legal duties to act in relation to the safety of their company. This is a legal anomaly that must be addressed and this should be prioritised by the Law Commission - as recognized in much of the debate around, and indeed the Home Office (2000) consultation on, the Law Commission’s proposals on reforming the law of manslaughter in 1996. 33 The reputation of - and public confidence in - the criminal law is hardly likely to be enhanced if directors and senior company officers remain relatively unaccountable for their failures. For this reason, we are strongly opposed to proposal 16 because it merely perpetuates the high degree of impunity afforded to directors. We would support the premise established by question 3 as going some way towards addressing the problems highlighted above, although this should not be seen as a substitute for the development of a range of positive duties that could be placed upon directors and senior officers. Local Government Regulation (LGR) 1.1275 We do not object to the proposal of introducing an offence of ‘negligently failing to prevent’ that offence. However, we would not consider it appropriate to lessen the existing penalties. 32 See Tombs, S and Whyte, D (2007) Safety Crimes, Collumpton: Willan. 33 Law Commission (1996) Legislating the Criminal Code: involuntary manslaughter. Report No. 237, London: HMSO. 235
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CRIMINAL LIABILITY IN REGULATORY CO
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1.8 The current approach of making
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1.21 We remain concerned that many
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Michelle Welsh, Monash University 1
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1.41 Looking for alternative dispos
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1.50 It is important that any regim
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1.61 Range of matters that may be s
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Raymond Schonfeld, Single Market Ve
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1.90 Sometimes appropriate to prose
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1.101 Note Commission’s point in
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1.113 Welcome Commission’s desire
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Trading Standards Institute (TSI) 1
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1.132 CP has misunderstood this imp
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1.144 There are different levels of
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1.156 We note, however, that it is
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1.167 The distinction between “tr
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1.173 Defence of due diligence: One
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Residential Landlords Association 1
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1.193 Any self regulatory scheme it
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1.201 Another issue in the case of
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“regulatory authorities should ma
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1.223 The paper says (n. 10) it is
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1.234 While for many arguments in t
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1.244 The identification doctrine i
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1.253 Decriminalising the regulatio
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1.262 The present position: Using k
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1.275 On the other, the immediately
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1.290 Another UK example of applica
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Judges of the Court of Session 1.30
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1.317 Spirit drinks in the EU are c
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1.325 Whether or not HMRC succeeded
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1.335 Furthermore, to suggest that,
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Criminal Bar Association and Bar Co
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1.346 The civil sanctions regime fo
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Trading Standards South East Ltd 1.
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1.363 Perhaps even more critically,
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(6) whether there are grounds for b
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1.380 Believes the aim of proposal
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1.393 Local regulators already (ie
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1.399 At what stage does reprehensi
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1.412 There is a reference at 1.47
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Both factors are relevant to a cons
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1.425 We do not think that the dete
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1.435 Further, it is considered tha
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1.449 The civil sanctions regime fo
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1.460 For my part, I struggle to se
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1.472 Very often an either-way offe
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Local Government Regulation (LGR) 1
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Institute of Employment Rights 1.48
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1.499 2008 Act limits the maximum f
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1.514 Agree. Residential Landlords
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1.528 Whilst these sanctions provid
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1.542 What is meant by “low level
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1.550 In addition ASIC sees value i
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1.557 Further, the RSPCA undertakes
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1.564 Civil remedies under the Ente
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1.573 FSA currently consulting publ
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EEF: The Manufacturers’ Associati
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1.595 Selling alcohol to children c
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Criminal Bar Association and Bar Co
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GC100 (association for general coun
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Faculty of Advocates 1.631 It would
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1.642 Agree. Criminal Bar Associati
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NHS Counter Fraud an Security Manag
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Local Government Regulation (LGR) 1
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Trading Standards Institute (TSI) 1
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(4) prosecution in relation to new
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Criminal Sub-Committee of the Counc
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CBI 1.717 Yes in principle, but see
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1.736 Procedural fairness is alread
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Association of Chief Trading Standa
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1.765 It is also important that pro
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Kingsley Napley LLP 1.775 In our ex
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Food Standards Agency 1.785 Strongl
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1.805 Agree. (3) Examples of Codes
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EEF: The Manufacturers’ Associati
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Residential Landlords Association 1
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QEB Hollis Whiteman Chambers, Justi
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RSPCA 1.845 As stated in this respo
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Central England Trading Standards A
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1.867 Due to a series of budgetary
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The Law Society 1.876 As a general
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City of London Law Society 1.886 We
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Criminal Sub-Committee of the Counc
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East of England Trading Standards A
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OFT 1.927 With regard to the fault
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The Faculty of Advocates 1.940 The
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