Prosecution of Directors: Consent/Connivance

How can a director "consent" to or "connive in" an offence by the company?

The case of Huckerby V Elliott [1] states that a person is said to have consented to the commission of an offence when he is:

'well aware of what is going on and agrees to it'

Agreement would need to be shown by some:

'positive action ... usually no doubt in words, perhaps in writing, if gestures were absolutely clear, it would conceivably be by gesture but, in my view, careful proof of such an intention would be required.' [Bell v Alfred Franks & Bartlett Co. Ltd] [2]

Consent therefore requires proof of both awareness and agreement

The case of Huckerby also states that a person is said to have connived in an offence when:

'he is equally well aware of what is going on but his agreement is tacit, not actively encouraging what happens but letting it continue and saying nothing about it.'

Connivance therefore requires proof of awareness (i.e 'turning a blind eye')

In a Crown Court judgment rlating to the Hatfied train crash which resulted in the dismissal of a number of charges under section 37, the judge made the following comment concerning the meaning of consent and connivance within the context of section 37.

In relation to consent, he says that this:

"requires proof of awareness of risk attaching to the conduct of the company's undertaking, and of the reasonably practicable steps which could be taken to avert it, coupled with an agreement that the company should carry on without taking such steps.

In relation to connivance, he says that this requires the same awareness as set out in relation to consent:

"plus allowing the company to carry on regardless, but without active encouragement or agreement, a state of what has been terms "wilful blindness" ... [p.98 of Court transcript].

This suggests that being aware of the offence by the company - necessary for bo consent and connivance - requires the directors to be aware both of:

It should be noted however this judgement is, in legal terms, only persuasive, and is not legal authority.

It should be noted, however that it is not necessary for the person to be aware that the particular conduct itslef (about which he is aware) actually constitutes a criminal offence. So a director, who is aware of that a particular employee or group of employees has not been provided training and there are steps that can be taken to advert the risks from that, could be prosecuted even if he was unaware that the company's failure to provide training itself constitutes an offence

Footnotes