Martin Evans Contributes to the Law Commission's Consultation on 'Criminal Liability In Regulatory Contexts'

In early 2009, it was agreed between the Ministry of Justice, the Department for Business, Innovation and Skills, and the Law Commission, that the Commission would undertake a project with the following broad aims:

First, to introduce rationality and principle into the structure of the criminal law, especially when it is employed against business enterprises. In particular, this will involve the provision of non-statutory guidance to all Government departments on the grounds for creating criminal offences, and on what shape those offences should take.

Secondly, to consider whether there should be created a statutory power for the courts to apply a ‘due diligence’ defence (the burden of proof being on the accused) to a criminal offence.

It was agreed that the Law Commission would add to this project other issues arising out of its on-going work on corporate criminal liability, as a part of its 10th Programme of Law Reform. These issues were added because of their close connection to the project.
These issues, which will be fully explained in due course, are:
  • The scope of the consent and connivance doctrine. This doctrine imposes individual criminal liability on directors (or equivalent company officers) for crimes committed by their companies, if those individuals consented or connived at the commission of the offence.
  • The status of the identification doctrine. This doctrine is used by courts to determine the basis on which corporate criminal liability arises under crimes requiring proof of fault created by statute. According to this doctrine, if a company is to be convicted of an offence, it must be possible to prove that the directors (or equivalent persons) themselves possessed the fault element in question.
  • The status of the doctrine of delegation. According to this doctrine, if someone (X) delegates the running of the whole of their business to another person (Y), and Y then commits an offence in connection with the running of the business, it is not only Y who can be convicted of the offence. X can be convicted as well, even if X was in no way at fault respecting the commission of the offence by Y.

The Consultation paper has now been published. Martin Evans has provided his extensive knowledge with the aim that any legislation is effective, fair and proportionate to its legitimate aims.

Download the paper here: