Criminal Liability in Regulatory Contexts Responses - Law ...

1.170 Corporate Criminal Liability: In her Appendix C, Professor Wells acknowledges
that corporate personality is not limited to companies, but this is not referred to in
the body of the PC. The criminal liability of partnerships (and in particular in
relation to regulatory offences) was considered by the Court of Appeal in R -v- W.
Stevenson and Sons [2008] 2 Cr App R 187 in which it was held to be a matter of
statutory interpretation. In that case the statutory obligations had been expressed
to extend to partnerships. Many statutes are silent or insufficiently clear. For
example, section 3 of the Protection of Children Act 1978 refers to offences
committed by “a body corporate”, under the heading “Offences by Corporations”.
Some definitions of “body corporate” include partnerships and associations, but,
so far as I am aware, there is no general decision as to whether, absent statutory
provision) an unincorporated association or partnership (including a limited
partnership) can have criminal liability, and on what terms. For an express
provision relating to partnerships etc, see section 1255 Companies Act 2006. It
would appear from section 3(2) Protection of Children Act 1978 that it was
intended to extend the meaning of “body corporate” to partnerships and nonregistered
associations, because it refers to bodies which are controlled by the
members, but it is a surprisingly unclear reference. Similar provisions are
included in section 202 Copyright, Designs and Patent Act 1988, and section 285
of that Act makes much more detailed reference to partnerships and bodies
corporate.
1.171 Although the CP considers that the criminal liability of a company is a matter of
statutory interpretation, it must be recognised that there are still common law
offences which are not governed by statute. The most relevant of these are the
offences of conspiracy to defraud (which has survived the Fraud Act 2006) and
cheating the public revenue. In R -v- ICR Haulage Ltd [1944] 1 All ER 691, the
Court of Criminal Appeal upheld the conviction of a company for conspiracy to
defraud. The argument concerned whether a company could have a guilty mind,
and the decision was based on the question of agency. It was subsequently
criticised by Lord Reid in Tesco Supermarkets -v- Nattrass. So far as I am aware
there has been no subsequent reported case in which a company has been
convicted of conspiracy to defraud. However, the existence of common law
offences prevents any general principle that corporate liability should not be
dependant on the identification doctrine.
1.172 An additional observation under this topic concerns the motivation issue. There
are many cases where the actual offender is carrying out a function given to him
by a company, of which he may be a senior manager/director, but he offends for
his own personal benefit, and not for the benefit of the company (for example, he
may dishonestly appropriate something which has been bailed to the company).
I can see no logical reason why the company should be held criminally liable for
this criminal conduct (I do not consider any civil liability for compensation), but the
issue is not discussed in the CP. Should a jury be directed that a company can
be convicted of an offence only if the individual committed the offence for the
benefit of the company?
32