Criminal Liability in Regulatory Contexts Responses - Law ...

1.1328 Q4: The example given in the consultation paper is a compelling illustration of the
difficulties within the doctrine of delegation and it is agreed that the culpability of
the licensor and the licenses in these circumstances should be reflected in
separate offences. A new offence of “failing to prevent an offence being
committed” would need to be very carefully considered. In circumstances where
the licensor themselves will be deterred from committing the offence by reason
for their own liability, it seems that the licensor’s obligations should only extend to
firstly, undertaking due diligence to ensure that no offending behaviour takes
place and secondly, upon learning that offending is taking place, taking steps to
prevent that behaviour. It is agreed that an individual’s liability arising from their
responsibility for another’s actions must be based on subjective knowledge rather
than “reasonable suspicion”.
Criminal Bar Association and Bar Council
1.1329 The CP rightly identifies how the wording in s18(1) Theft Act 1968 of providing
liability for a company’s offence, “where it is proved to have been committed with
the consent or connivance of any director, manager, secretary or other similar
officer of the body corporate or to have been attributable to neglect on his part”
appears in a number of statutes. It does not identify in this regard its long history
(not least in the Finance Act 1966, s17 of the Fire Precautions Act 1971, s87
Control of Pollution Act 1974, s37 HSWA 1974 and s 196(1) of the Banking Act
1987). Such a similarly worded provision does have a very long statutory history
and where the CP discusses the ambit of “consent and connivance‟ it notes “The
matter has not been judicially determined”.
1.1330 The five provisions cited in the paragraph above have been judicially considered,
most recently in respect of s37 of HSWA by Latham LJ, in the Court of Appeal in
R v P [2007] All ER (D) 173 (Jul), in a judgment cited with approval in the speech
of Lord Hope in Chargot, when considering the very same provision. We set out a
summary of the position below.
1.1331 In Att-Gen’s Reference (No 1 of 1995) [1996] 2 CR App R 320 the Court of
Appeal was asked to rule upon what state of mind was required to be proved
against a director to show “consent‟, pursuant to the Banking Act 1987 s 96(1), in
relation to a strict liability offence committed by a company contrary to the
Banking Act 1987 s 3.The Court concluded that a director must be proved to
have known the material facts which constituted the offence by the company and
to have agreed to its conduct of its business on the basis of those facts17. The
fact that a director may be ignorant that the conduct of the business in that way
will involve a breach of the law can be no defence.
1.1332 In Huckerby v Elliot [1970] 1 All ER 189 (DC), Ashworth J commented in passing
that the formulation of connivance as a state of mind in which a director is “well
aware of what is going on but his agreement is tacit, not actively encouraging
what happens but letting it continue and saying nothing about it” (at 193 to 194),
was one with which he did not disagree.
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