Directors' liability for environmental offences

The spectre of directors being disqualified from office where their company has committed an environmental offence has been raised in a recent Crown Court decision. The decision has particularly important implications for small and medium-sized companies, where individual managing directors may be the driving force behind operations.

As a matter of principle, companies can be found guilty of criminal offences under UK law even though they are artificial entities. Where the legal definition of the offence requires some element of intent to be present, the courts have held that if the company is to be held liable then this intent must be in the minds of a director, manager or other senior officer who can legitimately be described as the "mind" of the company.

Many pollution offences, however, are drafted as strict liability offences, meaning that the prosecution need prove no criminal intention as such, but generally only factual and causal links. In such cases, corporate liability is more extensive. There is no need for directors or other officers to be involved, and a company will be liable for the offences committed by any of its employees acting in the course of their employment under general principles of vicarious liability.

But directors and other officers may find themselves personally in the dock where their company has committed an offence under these principles. Many modern statutes contain provisions relating to the individual criminal liability of directors, managers and similar officers. These are drafted in a standard format, and provide that directors and others will also be guilty of the relevant offence where it was committed with their consent or connivance or attributable to their neglect. Such provisions can be found, for example, in section 157 of the Environmental Protection Act 1990, which applies to all parts of the Act, and in section 37 of the Health and Safety at Work Act 1974.

There is some case law on the meaning of the terms involved, though surprisingly little as yet. Certainly "connivance" and "consent" can encompass the director who turns a blind eye to what is going on, or who gives tacit agreement to actions that amount to an offence. "Neglect" is clearly a deeper concept, and can involve the failure to execute what is judged to be proper management control.

The recent decision of Lewes Crown Court involved the director of a quarrying firm which acted in breach of a Health and Safety Executive prohibition notice relating to falling rocks. The company thereby committed an offence, but the director was also prosecuted personally under the "consent or connivance" provisions of section 37 of the 1974 Act. He pleaded guilty and both he and the company were fined.

The significance of the case, however, lay in the decision of the judge, clearly concerned at the serious nature of the offence, to go on to disqualify the director from holding the position of a company director for two years. This was done under powers derived from the Company Directors Disqualification Act 1986, which in essence permits a court to disqualify a director convicted of an offence connected with the management of a company for up to 15 years where the case is heard in the Crown Court, and up to five years where it is dealt with by magistrates.

According to a Denton Hall newsletter which reported the case, this appears to be the first time these powers have been used in connection with a health and safety offence. As yet, they have not been used in the context of environmental law offences, but are certainly applicable where directors are prosecuted individually for offences such as those relating to the "duty of care" on waste producers, carriers and managers.

No doubt these powers will be reserved for the most serious of cases, and certainly the effect of a disqualification order is serious. During the period specified, the director may not, without leave of the court, serve as a director, or in any way be concerned directly or indirectly with the management of a company. The order applies to any company, and not simply the one existing at the time of the offence.

It remains to be seen whether the Lewes decision will encourage regulatory authorities in the environmental field to press more readily for disqualification orders, but the very existence of these provisions could be a deterrent of some power, and act as a spur for more effective environmental management.

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