«Can Corporations be Criminally Responsible? Conceição Soares Assistant Professor Centro de Estudos em Gestão e Economia/ Faculdade de Economia e ...»
(Under the objective test, it follows that the distinction between murder and manslaughter in the law of homicide disappears.) In general the objective test may be said to be an instance of strict liability, as the performance of the unlawful act is sufficient to confirm culpability, and no mens rea is required as to any element in the actus reus. According to Smith and Hogan, those crimes: “(which) do not require intention, recklessness or even negligence as to one or more elements in the actus reus are known as offences of strict liability or, sometimes, “of absolute prohibition” (1996:101) The objective test or strict liability is controversial in English law, especially in the context raised by Barbara Wootton (1960 and 1981). (1960:224-39) According to Wootton, who advocates the use of strict liability across the board in all circumstances, strict liability obtains in which the person who caused the forbidden result neither intended nor foresaw it. In this case the “person is held liable for the forbidden result although he did not foresee that it might occur, but a person behaving with prudence would have foreseen the risk and avoided the result.
(Smith and Hogan 1996:142) The main problem of the offences of strict liability is that it appears to offend against the notion of justice as fairness which demands that there be no culpability unless there is mens rea.
Another related difficulty is that it fails to distinguish between on the one hand, different degrees of fault and, on the other, no fault at all. With the “elimination” of mens rea, the basis of criminal responsibility as entailed by the
Kantian/Millean paradigm of responsibility, disappears. Barbara Wootton suggests that:
(the) concept of responsibility should be allowed to “wither away” and that strict liability might, not immediately but in due course, take over altogether. The mental state of the defendant, or his negligence, at the time of committing the offence would come into the picture only “after what is now known as a conviction” for the purpose of determining the appropriate treatment. (1981: 47) The Special Issue on Behavioral and Social Science © Centre for Promoting Ideas, USA www.ijhssnet.com If in offences of strict liability we do not consider fault or degrees of fault, how can we attribute responsibility?
As Smith puts it, to consider an offence of strict liability is a double reductions: (Smith and Hogan 1996) First, the exclusion of mens rea in the attribution of responsibility. Second, to remove the element of fault is to empty the law of moral content. In conclusion we can say that what counts in cases of strict liability is only the factual question: “Did he/she do it?” It seems that it does not matter, if he/she did it intentionally, recklessly, negligently, or by pure accident.
In this entire problematic, one question is fundamental to my purpose: What are the strengths and weaknesses of the two approaches regarding the issue of corporate responsibility for harm done. On the one hand, as I have already said, the subjective test/mens rea admits the relevance of fault and the degrees of fault so that it is possible to establish different degrees of responsibility and of corresponding severity of punishment. Such recognition seems to satisfy our instinctive sense of justice and fairness in attributing blame (moral/legal) to an individual.
Strict liability ignores this fundamental insight. On the other hand, the ascription of responsibility based on mens rea does not appear to be able to accommodate a corporation bad when it arises.
Mens rea as normally understood is a theory of individual responsibility, where the harm, which ensues, can be causally traced to the action (usually) of the individual defendant. Furthermore, the individual defendant must either directly intend the harm or knowingly (indirectly intend to) cause it (when the defendant is prepared to run the risk of causing the harm foreseen by him/her). However, in the case of a corporation bad, none of these conditions appears to obtain. If so, no one could be held responsible. But if one were to use the objective test/strict liability, then each individual in the causal chain leading to the production of the harm in question could be held liable. Although he/she might not have foreseen the harm, the reasonable man would have done so, and therefore, refrained from contributing to the harm.
Mens rea/the subjective test is paradigmatically a theory of individual responsibility where the “individual” is the “flesh-and-blood individual”. Such a theoretical approach seems to have difficulty in conceiving a corporation, which is not a “flesh-and-blood individual”, to be responsible for any harm it causes. The entity referred to by the name “Robert” is a flesh-and-blood individual who work in a shoe factory. But there seems to be no such individual we can point to, when we talk about a corporation. In the case of the Herald of Free Enterprise numerous flesh-and-blood individuals are involved in causing the sinking. The assistant bosun who fell asleep, there was his immediate supervisor who failed to check whether he had carried out his duty, there were people further up the line who had failed to install lights on the bridge, etc. On the theory of individual responsibility, some if not all of these individuals might be found guilty using the objective test/strict liability.
However, what it does not permit one to do is to find the corporation, Townsend Car Ferries Limited, to be guilty of manslaughter. This is critical if corporations are to be punished beyond a mere fine. If imprisonment were considered to be appropriate, then whom does the court send to jail? A corporation could pay a fine but could a corporation be sent to jail? Only “flesh-and-blood” individuals could be sent to prison. The court could imprison the assistant bosun, but is jailing him necessarily jailing the corporation itself? But why bosun and not some one at the top of the management, as people at that level seemed to have also been negligent? Surely mens rea fails to
obtain in the case of corporate conduct? In spite of this, Clarkson suggests that corporate conviction could apply:
“(by) humanising companies in the sense of breaking them down, metaphorically, into their underlying human components to see if there was an individual within the company who had committed the actus reus of a crime with the appropriate mens rea.” (1996:560) If the individual is a senior member of the company and has a key place, in the corporation’s structure of command it is possible to say that he/she represents the corporate brain and his/her acts could be identified with the company itself. If so, corporations could be held directly responsible (in the same terms as the individual).
Lord Denning 1995:172) In English law, for a type of crime involving proof of mens rea, the established way of prosecution is via the identification doctrine. This doctrine establishes that this kind of crime is only applicable to (a) senior member(s) who stand(s) for the mind of the corporation and in this case the company can be liable for his/her act and mens rea. By this process there is identification between the acts of the individual and of the company, which means that direct accountability could be applied. Such a theory allows for the prosecution of the company via the individual. However, if the individual is not a senior member, the prosecution is only imputed to the individual and not to the company.
Vol. 3 No. 6 [Special Issue – March 2013] International Journal of Humanities and Social Science Some objections could be applied to this theory. As Field and Jörg point out, this theory makes a division between “brains” and “hands” within the corporation structure, which leads to a real obstruction in the efficacy of legal control in at least, two ways. (1978:156-71) First, in large corporations in which the corporate structures are more diffused it is current practice to give power to quasi-autonomous managers; in these cases it is easy to avoid responsibilities. For instance, when a corporation is at risk of prosecution for manslaughter, a similar process of transferring power could occur with the aim of evading responsibilities. Second, this account limits corporate responsibility only to the “brains” of the corporation.
Whilst the first objection may have some force in some contexts, the second seems not to be really valid.
However, it makes sense to single out the “brains” of the corporation as the embodiment of the corporation as it is at this level of top management that goals are chosen and strategies adopted.
One alternative to the identification doctrine is the aggregation doctrine. In order to overcome the problems of the identification doctrine, this theory aggregates all the acts and mens rea of several pertinent individuals in the company in order to verify if it is possible to consider it a crime as if those acts have been committed by only one person.
Again, critics point out that this view does not reflect corporate decision-making in reality. Even when the acts of A, B, C or D might be gathered together to determine a crime, the reality might show that none of these agents need be at fault. The corporation may be structured in such a way that B could and would not know what C was doing or has failed to do.
Another solution to corporate criminal responsibility is the theory of Reactive Corporate Fault which advocates that when the actus reus of an offence by the corporation is established, a court gives the corporation the power to guide its own investigation, with the aim of finding out who was the responsible employee and after that of applying the adequate measures. No criminal responsibility will be imputed if the corporation takes the necessary measures. Criminal responsibility is only prescribed in case the corporation does not implement in a satisfactory way the court order. According to Wells this theory has at least two advantages. First, traditionally corporate liability needs proof of responsibility for causally relevant acts or omissions at or before the time the wrongdoing is manifest; however, this theory does not presuppose antecedent fault. (Fisse and Braithwaite 1988:47-49) Second the corporation has the possibility to demonstrate grief and rehabilitative measures. (Wells1998a:659) However, in Clarkson’s opinion, this theory also has some distinct disadvantages. What kind of practices or measures could be applied in terms of avoiding criminal responsibility? In the case that the corporation does not take satisfactory steps, what kind of offence is committed? Would admonishing an employee and warning the staff be enough to prevent people from doing certain actions in the future? (1982:8) In Clarkson’s view, the best way to ascribe criminal responsibility to a corporation is to combine the doctrine of corporate mens rea with the corporate compliance programme (this is a formal programme with the aim of ensuring that every employee in the corporation knows the laws related to the corporation’s actions) which tries to guarantee corporate compliance with the law. As Laufer (2006) and Clarkson point out, such a programme is an attempt at recognising all the complexities of the dynamism of a corporation, namely, its structure, culture, aims and positions, which together form the corporation ethos that help or even animate the commission of crimes in certain instances. (1994:660) The first element, the doctrine of corporate mens rea, enables us to think of corporations as “culpability-bearing agents who “act” through their officers and employees and whose “mens rea” is to be found in their corporate practices and policies.” (Clarkson 1982:11) This approach is based on the combination of two main theories of culpability, the capacity theory and the character theory. (Horder 1993:193-215) The capacity theory is largely based on the work of H.L.A. Hart (1963;1968;1983) and bears resemblance to my own account set out earlier. This theory advocates that the defendant has both the physical as well as the moral capacity to avoid the wrongdoing. When an agent makes choices it is expected that he/she take reasonable steps to avoid harming others. When extended to the context of the corporation, one must remember that the policies, plans, aims and the set of practices within a corporation are evidence of corporate culture, intention and knowledge that are irreducible to the purposes, intentions and knowledge of individuals in the corporation.