It may come as a surprise to those of us who are directors of a company to know that we may be held criminally liable for environmental offences committed by the company. Upon conviction directors may be imprisoned even if the specified fines are paid.
Most business people would be familiar with the advantage of using a limited liability company as a legitimate way of minimising personal exposure. This approach is possible because companies have a legal personality separate and apart from their directors. While this allows some shelter from civil law suits filed against the company, the same cannot be said for the liability of directors in criminal law for offences committed by the company.
The recent news reports dealing with incidents of air and water pollution are indications of the increased vigilance being paid by regulatory bodies for breaches of environmental laws. These reports highlight just a few of the myriad of environmental and planning laws which seek to regulate our behaviour so as to protect natural resources and public health. In addition to laws which address pollution to the environment, there are restrictions placed on the commercial use of beach areas, physical development projects, possession of and trade in certain plants or animals, and hunting and fishing activities.
These environmental laws are found in statutes. Each statute has a section creating an offence, the wording of which will state that any person who does a certain prohibited activity shall be guilty of an offence, and shall be liable on summary conviction before a Parish Judge for a specified punishment.
Careful attention has to be paid to statutes passed prior to 1962 as the wording of the charging sections will have to specifically set out whether directors of a company are to be made liable for such offences. Due to the operation of the Interpretation Act, the charging section of statutes passed after 1962 need not specify that directors of the company can be held liable for crimes committed by the company, as it is sufficient for the charging section of the statute to make a reference to ‘any person’.
Krishna Desai is a Partner at Myers, Fletcher & Gordon. He is the head of the firm’s Property Department. Krishna may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.