Criminal Liability in Regulatory Contexts Responses - Law ...

1.1319 Q3: We do not agree that an individual director should be held criminally liable for
failing to prevent an offence committed by the company. Directors can already
be held responsible under the Directors Disqualification Act 1986. However, we
recognise there may be potential problems to such powers in relation to
equivalent officers such as partners in a partnership and member of a limited
liability partnership.
1.1320 Q4: We do not support the suggestion.
Judges of the Court of Session
1.1321 We agree.
1.1322 Q1: We are of the view that this may be appropriate.
1.1323 Q4: Yes, although some attention may require to be given to the appropriate
mens rea of the replacement offence.
Kingsley Napley LLP
1.1324 There are a number of offences which can be committed by companies for which
directors can be liable if committed with the directors’ consent, connivance or
neglect. Section 23 of the Private Security Industry Act 2001 is an example.
1.1325 The common law is well established that the director of a company is not under a
general duty to exercise some degree of control over the company’s affairs, to
acquaint himself with all the details of running a company or to supervise the
running of the company or his co-directors. Therefore, neglect requires more than
proof of a simple failure to see that the law is observed. It requires the
identification of a particular duty falling to an individual director to undertake a
particular act and their failure to do so (Huckerby v Elliot 1 All ER 189 DC).
1.1326 Within these common law boundaries, criminally culpable offences should arise
in circumstances where a director fails to act to prevent an offence being
committed. When compared against “connivance”, defined as being “well aware
of what is going on … but letting it continue and saying nothing about it,” there
are circumstances in which failing to discharge a particular duty may in fact give
rise to a greater degree of moral culpability. Numerous examples arise within the
context of health and safety law, whereby the failure to observe particular
obligations upon specific director may result in serious injury or loss of life.
1.1327 Q3: As indicated above, it is believed that there are circumstances in which this
should amount to criminal conduct although whether or not this is a separate
offence does not seem important, other than to the extent that it attracts different
maximum penalties. We consider that director liability for the commission of an
offence by connivance or neglect do not represent different levels of severity in
general but rather, the gravity of the offending will depend on the specific
circumstances of the offences. In these circumstances, it would not seem
sensible to create a different offence with a separate maximum sentence solely
for offences committed by negligence.
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