CHAPTER TWO – CORPORATE CRIMINAL LIABILITY

Corporations and Organisations

There are competing principles of attribution of criminal liability, which are themselves not exclusive of each other, namely the ‘identification doctrine’ (following the principles set out in Meridian Global Funds Management Asia Ltd v Securities Commission¹) and the doctrine of vicarious liability. Corporate responsibility is not just limited to those cases where the individuals responsible for the criminal acts are of such sufficient seniority within the organisation such that they act as the controlling mind of the company.

In the context of criminal law, it is possible to identify yet another broad extension of the principle of vicarious liability, when considering types of offences that carry with them a particular social or public interest in ensuring a wide ambit of liability, often justifying a form of strict liability. In the context of environmental criminality, two cases highlight the strict nature of legal liability for corporate wrongdoing. In National Rivers Authority (Southern Region) v Alfred McAlpine Homes East Ltd² the High Court stated:

“ … to make the offence an effective weapon in the defence of environmental protection a company must by necessary implication be criminally liable for the acts or omissions of its servants or agents during activities being done for the company. I do not find that this offends our concept of a just and fair criminal legal system having regard to the magnitude of environmental pollution even though no due diligence defence was provided for.”

In Environment Agency v Empress Car Co. (Abertillery) Ltd³ the House of Lords summarised the principles as follows:

“(1) Justices dealing with prosecutions for “causing” pollution under section 85(1) should first require the prosecution to identify what it says the defendant did to cause the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail: the defendant may have “knowingly permitted” pollution but cannot have caused it.

The prosecution need not prove that the defendant did something which was the immediate cause of the pollution: maintaining tanks, lagoons or sewage systems full of noxious liquid is doing something, even if the immediate cause of the pollution was lack of maintenance, a natural event or the act of a third party.

When the prosecution has identified something which the defendant did, the justices must decide whether it caused the pollution. They should not be diverted by questions like “What was the cause of the pollution?” or “Did something else cause the pollution?” because to say that something else caused the pollution (like brambles clogging the pumps or vandalism by third parties) is not inconsistent with the defendant having caused it as well.

If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.

The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.”

Consequently, corporations can be guilty of criminal activity where their activities have, as a matter of fact, caused pollution, irrespective of whether that cause was not the immediate cause of the pollution and irrespective of whether such pollution was reasonably foreseeable. Factually therefore, the criminal acts of agents or employees acting within the course of their employment will result in criminal liability for the organisation, regardless of whether those persons can be said to be exercising the controlling mind and will of the company.

The caveat to this principle applies where the particular criminal offence in question concerns an element of mens rea. In such circumstances, intention can only be attributed to a company where the relevant person can be shown to be part of the controlling mind and will of the company⁴.

Unincorporated Associations

It is instructive to compare and contrast the approach of the criminal courts to associations of individuals which are not incorporated. In R v L and another ⁵ the underground pipework of an oil storage tank belonging to a golf club leaked and polluted a watercourse. The club was an unincorporated association consisting of its members. Two of its officers, who lacked any personal culpability, were charged with the strict liability offence of causing polluted matters to enter controlled waters.⁶ The Court of Appeal held that an unincorporated association was by operation of the Interpretation Act 1978 a ‘person’ for the purposes of that offence and identified many other statutes in which, in varied forms, the concept of criminal liability of an unincorporated association was either explicit of implicit. The Court emphasised that its observations were limited to strict liability offences, recognising that very different considerations would arise in the case of any offence involving mens rea. The Court also emphasised the co-existing criminal liability of all the members of an unincorporated association; in the case under consideration, all 900-odd members of the club could have been prosecuted as equally primarily liable.

In R v Lear⁷ the two partners in a hotel business were individually prosecuted for health and safety offences following the death of a guest in a fall through a low sash window. Liability was strict⁸. The Court of Appeal applied R v L “a fortiori”⁹ and held that both the partnership and the individual partners could be prosecuted.

The logic is inescapable and remorseless but its consequences are problematical. In R v L the Court identified five different types of statutory provision concerning the criminal liability of unincorporated associations: (i) stipulating that the association shall be prosecuted in its own name and that the members shall not be prosecuted; (ii) limiting the criminal liability of members to cases where they have personal culpability (“officers’ liability clauses”); (iii) making any fine payable from the funds of the association, as distinct from those of any member personally; (iv) providing for the rules of service applicable to corporations to be adapted to unincorporated associations; and (v) applying procedural provisions primarily directed to corporate defendants. These serve to identify the nature of the problems. Statutes creating strict liability offences might contain all, some or none of these provisions.

Difficult questions can arise as to how a sentencing court is to approach the question of the defendant(s)’ means. Whilst in the case of a business partnership, particularly one comprising only a few partners, it might well seem right to look beyond the assets of the partnership to those of the individual partners, that is not obviously so in the case of the members of a golf club. R v W Stevenson & Sons¹⁰ concerned strict liability offences under the Sea Fishing (Enforcement of Community Control Measures) Order 2000, which contained an officers’ liability provision specifically applicable to partnerships. The Court of Appeal held that the terms of this provision made it clear that a partnership could be prosecuted in its name and that individual partners could only be prosecuted if possessed of the mens rea stipulated in the officers’ liability provision. The Court further held (with reasoning of more general application) that if the partnership was prosecuted and convicted, any fine imposed could only be levied against the assets of the partnership and the individual partners would not then be ‘offenders’ for the purpose of confiscation proceedings.

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