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:

Advice on Sanctions, Embargoes and Trade Restrictions

One of the most interesting areas of work which we undertake is in the giving of advice about trade restrictions, sanctions and embargoes to firms in the UK and overseas. UK firms ask for advice about navigating the control lists, the Export Control Act 2002 and the associated Export Control Order 2008, especially schedules 3 and 4 (dual use and countries and designations subject to stricter export and trade controls).

Our overseas instructions are often concerned with export and re-exports to areas of the world subject to sanctions, whether certain goods breach those restrictions and what liabilities may occur if manufacturers' goods find their way into restricted areas. The recent increase in cargo inspections at certain key ports and tighter rules on transactions with banks from territories subject to renewed sanctions have caused many more firms to pay closer attention to the instruments that purport to give power to inspections and licensers; a number of export firms are suffering huge losses and want advice about how to stay on the right side of export controls whilst maintaining as much trade as permissible. Our asset freezing knowledge has also helped companies and individuals who have had their accounts frozen pursuant to UN resolutions.

We can offer advice to UK and foreign companies because of our direct access license our ability to accept instructions form overseas clients. See here and here.

Our Regulatory Law Work

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33 Chancery Lane is a leading set in proceedings before financial and professional regulatory bodies. In the financial context, members of chambers provide representation when the Financial Services Authority seeks to apply its enforcement powers against regulated and non-regulated firms and individuals and in mediation and settlement discussions, as well as accepting instructions to appear before the Tax and Chancery Chamber of the Upper Tribunal on appeal against a Decision Notice.  We also have experience of the preparation and submission of applications for authorisation by the FSA to conduct regulated activity.

Members of chambers frequently appear before professional disciplinary bodies and have particular expertise in proceedings before the Solicitors Disciplinary Tribunal; the Disciplinary Committees of the bodies regulating the accountancy profession, ACCA and ICAEW; and the Taxation Disciplinary Board.  We also regularly advise on, and appear in, disqualification proceedings pursuant to the Company Directors Disqualification Act 1986.

Members of chambers also have substantial experience of regulatory action brought by the Medicines and Healthcare products Regulatory Agency.

33 Chancery Lane’s specialism in cross-over work allows members to understand and address the conflicts and difficulties that arise when criminal and regulatory proceedings are pursued simultaneously.