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«Can Corporations be Criminally Responsible? Conceição Soares Assistant Professor Centro de Estudos em Gestão e Economia/ Faculdade de Economia e ...»

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Vol. 3 No. 6 [Special Issue – March 2013]

International Journal of Humanities and Social Science

Can Corporations be Criminally Responsible?

Conceição Soares

Assistant Professor

Centro de Estudos em Gestão e Economia/ Faculdade de Economia e Gestão do Centro regional do

Porto, Universidade Católica Portuguesa. Rua Diogo Botelho, 1327 – 4169-005 Porto

Abstract

In this paper I will attempt to clarify the notion of corporate criminal responsibility. My analysis is based upon the case of the Herald of Free Enterprise. In the theoretical and practical debate about this case I will analyse the legal difficulties around the notion of corporate criminal responsibility. These difficulties are essentially related to three questions. The first one is related to the fact that in our Western cultures, responsibility is based upon individual responsibility. The second one is related to the elimination of mens rea (the relevance of fault and the degrees of fault) in offences of strict liability. The last difficulty is connected to the values which inform the theory of individual responsibility, and the law which endorses it. Despite all these difficulties I shall argue that under certain circumstances it is possible to support that corporations have criminal responsibilities.

Introduction In this paper, I shall argue that an adequate theory of criminal responsibility is needed, which goes beyond individual responsibility, to include collective and corporate responsibility which is more open to taking into consideration society and its problems. An adequate theory of corporate responsibility must also rest on a theory of agency, which holds, as Hegel and Arendt contend, that individuals are not isolated fictive,

Abstract

entities, but beings shaped by society; furthermore, it is also the case that while individuals are shaped by society they in turn shape society itself.

This paper is an attempt to clarify the notion of corporate criminal responsibility, (specifically in UK) rather than collective responsibility in general, I shall ignore the latter except to raise the following question –– how is a corporation to be distinguished from collectivities in general –– and then to answer it, here, in the briefest way possible. Collectivities like society, the family, the public, etc are general, amorphous, non-specific and illdefined, whereas, corporations, ex hypothesi, are specific legal entities. Furthermore, corporations are consciously and carefully structured organizations with different levels of management and have clearly defined aims and objectives.

For my purpose the most important issue about corporate responsibility is to know if it makes sense to impute criminal responsibility to a corporation. According to what I will analyze in this paper I concluded that under certain circumstances it is possible to argue that corporations have criminal responsibilities.

I argue that some of the major criticisms of individual legal/criminal responsibility can be overcame; in other words, that it makes sense to hold certain people within the structure of a corporate hierarchy to be responsible for manslaughter, and even the notion of means rea, a fundamental requirement for attributing responsibility in the law of homicide within the framework of individual responsibility applies.

This paper is organized as follows: First, I will describe the case of the Herald of Free Enterprise. Second, I analyze critically from the theoretical point of view, the legal theories of corporations and also some theories of corporate criminal culpability. Finally, I use the tragedy of the sinking of the Herald of Free Enterprise, to illustrate the points under discussion on the second part.

The Special Issue on Behavioral and Social Science © Centre for Promoting Ideas, USA www.ijhssnet.com The Case of the Herald of Free Enterprise The day 6th March of 1987 was a terrible day for the passengers of the Roll on/Roll off ferry Herald of Free Enterprise.1 The ferry capsized in the approaches to the Belgian port of Zeebrugge en route to Dover in England at 19.05 local time. There was a light easterly breeze and the sea was calm. The ship had a crew of 80 and carried 459 passengers, 81 cars, 3 buses, and 47 trucks. After leaving the harbour, 90 seconds later, she capsized ending on her side half-submerged in shallow water. Only an accidental movement to starboard in her last moments prevented her from sinking totally in deeper water.

After the capsize, a courageous search and rescue operation was raised. At least 150 passengers and 38 members of the crew died from hypothermia, many of them inside the ship or in the frozen water. Many others were injured. The rescuers soon realised that the Herald of Free Enterprise had left the Zeebrugge port with her bow doors open. The design of the Roll on/Roll off ferry boats are essentially pontoons covered by a superstructure, with bow and stern doors which provide the means for vehicles to drive on and off via adjustable ramps at the dock. The speed of a ferry loading and unloading is improved for a Roll on/ Roll off ship, abbreviating the time a ship spends in port.

The Sheen Report identified five faults related to safety as the direct cause of the disaster. First, the pressure to leave the berth immediately after the loading. Second, excessive number of passengers. Third, indicator lights – “there is no indicator on the bridge as to whether the most important watertight doors are closed or not.” Fourth, ascertaining draughts: “The ship’s draught is not read before sailing, and the draught entered into the Official Log Book is completely erroneous. It is not standard practice to inform the Master of his passenger figure before sailing. Full speed is maintained in dense fog.” Fifth, the capacity of the ballast pumps. The existing pump took





1.30 minutes to empty the tanks, which meant that the ferry could not get back on to an even keel until it was well out to sea. A new pump would only have cost £25,000, but the Company regarded this as prohibitive. “From top to bottom the body corporate was infected with the disease of sloppiness”, said the Report on the disaster. The board of directors ignored the several recommendations about the safety management of their vessels.

Yet, as far as culpability was concerned, the Sheen Report found Captain David Lewry and Mr Leslie Sabel (the Chief Officer) to have been “guilty of serious negligence causative of the casuality. Both these officers have suffered the penalty of having their Certificates suspended (The Sheen Report, 74).” In the light of that, the “Court does not wish to impose on them a heavy financial penalty. (ibid)” As for Townsend Car Ferries Limited, the Report merely concluded that it had no way of marking its “heavy responsibility for the disaster” than paying the sum of £350,000 towards the payment of the costs of the Court’s investigation into the whole tragedy. Justice Sheen significantly remarked: “That seems to me to meet the justice of the case (The Sheen Report, 74-75).” In the theoretical and practical debate about this case I will analyse the legal difficulties around the notion of corporate criminal responsibility. These difficulties are essentially related to three questions. The first one is related to the fact that in our Western cultures, responsibility is based upon individual responsibility. The second one is related to the elimination of mens rea (the relevance of fault and the degrees of fault) in offences of strict liability. The last difficulty is connected to the values which inform the theory of individual responsibility, and the law which endorses it.

The Theoretical Debate

How can a legal entity such as a corporation be said to be criminally responsible? According to Celia Wells:

“Criminal law is pre-eminently concerned with standards of behaviour enforced, not through compensation, but through a system of state punishment negotiated via standards of fault such as intention, knowledge, and subjective recklessness” (1998a:654).

If it is difficult to ascribe civil liability to a corporation it is even more difficult to ascribe criminal responsibility.

The most serious offence which corporations can be charged with is manslaughter; others, less serious, are connected with failure to enforce standards pertaining to environment, health and safety, conditions of trade.

Some theorists, such G. R. Sullivan argue that there is no such thing as corporate crimes. 2 In a good many cases such as the case of the Herald of Free Enterprise, there is no one single individual who has caused the harm; what has happened is a conjunction of several actions committed by several individuals producing the harm.

Vol. 3 No. 6 [Special Issue – March 2013] International Journal of Humanities and Social Science As the company structure is so complex, it is difficult to know who ultimately bears the responsibility. Even when we do attribute culpability to a corporation it is always an individual (or individuals) within the company who is (are) held culpable, as crimes “can only be committed by human, moral agents”. (Sullivan 1995:281-92) Discussions about corporate criminal responsibility reflect concerns about the safety of employees, customers, as

well as of the public at large. As Wells puts it:

Disasters such as rail crashes, ferry capsizes, and chemical plant explosions that can be attributed to corporate enterprise operations have led to calls for those enterprises to be prosecuted for manslaughter. It is the cultural origins in changing perceptions of risk and hazard from various sources as well as the legal acceptance of these demands that are of interest. (1998b:658) A key source of resistance against the notion of corporate conviction is that, under the dominant theory of individual responsibility, individuals could be blamed for their actions only if mens rea obtains. In the homicide law (in England and Wales) it distinguishes between the so-called subjective and objective tests. The subjective test of liability is related to the state of the agent’s mind, mens rea, at the time of committing the act. The mens rea, or mental element, consists in the state of mind, either (directly) intentional or indirectly so under recklessness in relation to the actus reus, which must be proved, to secure a conviction of murder or manslaughter.

The test is posed as follows (using a road incident as an example): Did the defendant deliberately and directly intend to kill the pedestrian in driving at the speed he/she did? If the answer is yes, then it is murder. If the answer is no, then a further question arises: Did the defendant foresee the harm that he/she caused to the victim but nevertheless run the risk of speeding? If the answer is yes, then the defendant is guilty of manslaughter. (This would be a case of “knowingly” causing or “indirectly intending” to cause the harm, that is to say, to cause the harm recklessly.) The objective test is solely concerned with the actus reus; it merely asks the question whether the defendant as a “reasonable man” can foresee the death/harm. The actus reus is concerned only with the external elements of the offence. Using again the example cited above, the actus reus may be defined as “the act of speeding resulting in death”. The objective test may be posed as follows: (a) can the death be causally traced to the defendant (and not somebody or something else)? If the answer is yes, then go on to (b): would the reasonable man (not the defendant as such) have foreseen the death/harm resulting from the speeding? If the answer is yes, then the defendant is guilty of murder, irrespective of whether he/she directly or indirectly intended the death or foresaw it.



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