09 Jun 2023

CLLS Paper Identity Doctrine Reform

The CLLS Corporate Crime And Corruption Committee set out its response to the Home Office paper “Reform To The Identity Doctrine”. There was a diversity of opinion about the proposal to reform the identity doctrine, not least due to the unrealistic turnaround timing set for the consultation. Points in favour: the present conception of the identity-doctrine, as expressed in "Tesco v Nattrass", is no longer appropriate to the business practices of today. It is recognised that, within many organisations, powers of decision are frequently delegated to senior managers who are not members of the board of directors or likely to meet the strict “directing mind and will “ test. However, these managers will have been given a great deal of operational autonomy to decide on the organisation’s approach to particular topics. Whether the organisation is liable should not depend so heavily on contingent factors such as the official status from time-to-time of such individuals. Points against: more than one objection was to the apparent lack of clarity in the definition of “senior manager” and/or “high managerial agent” without the existence of significant case law to define these categories. There is the potential for the judiciary to interpret these categories more broadly than might be intended.