BCL solicitor, Tom McNeill‘s article “the age of corporate responsibility” has been published by Compliance Matters, discussing corporate liability in the UK.
Here’s an extract from the article*:
“One particularly contentious issue for the courts to resolve was which persons could be identified as the directing mind of the company. The House of Lords finally drew the line in Tesco Supermarkets Ltd v Nattrass [1972], which remains the leading case, restricting it to the most senior officers who actually control the corporation's operation. In the words of Lord Reid, this would normally be "the board of directors, the managing director and perhaps other superior officers of a company [who] carry out the functions of management and speak and act as the company." In Tesco, for example, this did not include a branch manager.
A common criticism is that the narrow definition of 'directing mind' has shielded corporates from criminal liability. Particularly in large organisations, it is relatively rare that a directing mind will be party to criminal conduct. This accounts for the collapse of the prosecution of P&O European Ferries for common-law corporate manslaughter regarding the sinking of the Herald of Free Enterprise in May 1987, when 193 people died, notwithstanding the findings of the Wreck Commissioner Mr Justice Sheen that: "All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness." The subsequent prosecution failed because it could not establish that any directing mind was personally guilty of gross negligence manslaughter (which guilt could then be attributed to the company).”
*This article was originally published by Compliance Matters on the 29th July 2019. You can read the full article by logging onto their website.
Tom McNeill is a senior associate at BCL Solicitors, specialising in corporate crime, financial crime and regulatory enforcement. His expertise includes internal investigations, corporate and director liability, corporate manslaughter, health and safety, environmental protection, fire safety, trading standards, and Coroners' inquests, as well as all types of fraud, bribery and money laundering. He has conducted privilege-protected internal investigations on behalf of a range of corporate clients following fatal accidents and other serious regulatory breaches, and in relation to suspected financial crime.
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