386AD. State of mind of corporation, unincorporated association, etc.

Question 1

386AD. State of mind of corporation, unincorporated association, etc.

Answer 1

General overview
[386AD.01] Generally speaking, criminal liability in respect of a corporation for an offence follows the “identification” principle, i.e. a corporation is liable for an offence when its “directing mind and will” committed the offence. The court often looks to identify the “directing mind and will” of the company which has committed the offence: Tesco Supermarkets Ltd v Nattrass [1972] AC 153, HL ; and see s 19. The rules governing tort liability are often applied to fix criminal liability on the company. However, s 386AD adopts the “agency” principle to pin liability on the company or foreign company for contravention of any offences prescribed for Part XIA of the Act.

Question 2

“officer, employee or agent”

Answer 2

[386AD.02] Section 386AD(1) provides that where an officer, employee or agent of the corporation in that conduct carries out any act or omission within the scope of his actual or apparent authority, his state of mind is attributed to the corporation.

Question 3

Unincorporated association or partnership

Answer 3

[386AD.03] Section 386AD(2) provides the same attribution rules in respect of an unincorporated association or a partnership.