(C) The defendants (I) Corporations

Since the 1840s English law has recognised that corporations as well as natural persons may be held criminally responsible,¹⁰³ but the ways in which it attributes criminal responsibility (sometimes in combination with the definitions of the crimes themselves) sometimes make its imposition problematic. English law distinguishes between the vicarious and personal criminal liability of companies and within the latter between cases where the company in law commits an offence and where offences are committed by the individuals who control the company.

First, at common law employers are vicariously criminally liable only where their employees commit the crimes of criminal libel or public nuisance, in striking contrast to their vicarious civil liability, which is imposed in respect of any tort committed in the course of employment.¹⁰⁴ This means, for example, that where a company employs a person who commits an act of public nuisance in the course of his employment, the company is also guilty of the crime.¹⁰⁵ This special treatment has been criticised as anomalous.¹⁰⁶

Secondly, companies can be held to commit in law the conduct criminalised by a particular offence: the classic example, and one of obvious application to products, is where a company’s employee physically sells a product to someone, but the sale is held legally to be his employer’s. Here, if the offence in question is one of strict liability (in the sense here of lack of proof of intention or recklessness) then the company may be convicted without more.¹⁰⁷ However, this approach is restricted to statutory offences, is dependent on judicial construction of the statute and has been of most importance where the offence is one of strict liability, for otherwise the requisite fault element of the offence must be shown on the part of the employee/company.¹⁰⁸

Thirdly, a company may be directly criminally liable in respect of offences committed by those company officers who ‘represent the directing mind and will of the company and control what it does’.¹⁰⁹ Under this principle of identification, a company can be criminally responsible for any type of crime committed by its responsible officers. Unfortunately, it is not clear which company employees count as ‘responsible officers’ for this purpose, the speeches in the leading case in the House of Lords, if strictly applied, leading to different results.¹¹⁰ It includes a company’s managing director and (p.417) perhaps some of its other higher officers, but does not include a more junior manager who is merely in control of the way in which the company acted in a particular context or on a physical site,¹¹¹ or a mere employee or ‘worker’.

This has been a very controversial route for the imposition of criminal responsibility, in particular as regards its inability to attribute criminal responsibility for manslaughter to companies in contexts of failures of health and safety.¹¹² This has led the Law Commission to recommend that there should be a distinct criminal offence of ‘corporate killing’.¹¹³ However, imposing corporate criminal responsibility on the basis of the mens rea of the ‘controlling officers’ also causes difficulties where an offence is one of ‘strict liability’ but includes a defence of due diligence, such as is found in many product safety offences.¹¹⁴ For example, in Tesco Supermarkets Ltd. v Nattrass, a nationwide supermarket company was charged with the offence under section 11 of the Trade Descriptions Act 1968 of offering for sale at one of its stores goods at a price less than they were in fact being offered.¹¹⁵ This offence did not require any dishonest intention, but it provided a defence where the ‘commission of the offence was due…to the act or default of another person’ and the defendant had taken ‘all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control’.¹¹⁶ As the local manager of the store in question was not one of the controlling officers of the company and therefore could be ‘another person’ vis-à-vis the company, the latter could excuse itself subject to more general proof of due diligence. Tesco therefore encourages a large company which has set in place an appropriately ‘diligent’ corporate system, to devolve functions to lower managers safe in the knowledge that any failure in their implementation will not redound to the company’s responsibility: indeed, some consider that ‘the Tesco decision…emasculated the liability of corporations for breaches of consumer protection law’.¹¹⁷