Criminal Liability in Regulatory Contexts Responses - Law ...

Trading Standards South East Ltd
1.1292 TSSE is firmly of the view that the situation with regards to consent and
connivance, neglect, etc and the doctrine of delegation must remain as it
currently is in order to provide the level of protection afforded to consumers that
they currently enjoy. Trading Standards will consistently prosecute directors
where it can be shown the offending of the Company would not have occurred if
that particular director had done their job properly. In addition, many traders will
form a limited company in order to limit their personal liability, yet, to all intents
and purposes they are the limited company. In the event of the company
becoming insolvent, the directors can still be prosecuted for criminal offences that
have been committed by the company if the appropriate tests of consent or
connivance,etc, are met. It is the view of TSSE that this serves as an invaluable
tool in the field of consumer protection and must be retained.
1.1293 Furthermore, where a director is found to set up limited companies and fold them
only to re-emerge in the same trade – phoenix – to only be able to pursue the
company would be impossible once it has been liquidated. Under these
circumstances it is wholly appropriate to pursue the controlling minds of such
companies and seek to ask the courts to ban individuals from being directors of
companies.
1.1294 With regards to the doctrine of delegation, TSSE is of the opinion that to abolish
this and replace it with an offence of failing to prevent an offence being
committed by someone to whom the running of the business had been delegated
will have no practical effect and will simply result in yet another offence being
put onto the statute books. Traders, or businesses, who simply delegate their
responsibilities to another person have, in turn, a responsibility to ensure that
delegation is properly carried out. Should that delegation not be properly
managed and maintained, then if criminal offences subsequently occur in relation
to the running of that business then all parties in the arrangement will have failed
in their duties and should be liable to be dealt with accordingly.
OFT
1.1295 We do not believe that directors and equivalent officers should be able to escape
liability for the actions of their companies when they had no knowledge of the
offence in circumstances where that lack of knowledge or the commission of the
offence arises from their own negligence. The Money Laundering Regulations
and other consumer protection legislation provide for liability in these
circumstances.
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