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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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The Special Issue on Behavioral and Social Science © Centre for Promoting Ideas, USA www.ijhssnet.com These aims and practices of the corporation are authoritative because they have emerged not from the decision of a single individual but by a decision-making process accepted and confirmed as authoritative in the corporation.

The capabilities that such an account consider important to moral responsibility, such as understanding, reasoning and control can also be found in the policies and plans of corporations. The advantage of this theory in terms of corporate criminal responsibility is that it includes and explains negligence liability.

The character theory holds agents responsible for those actions, which manifest their character. To cause harm intentionally, knowingly, recklessly or negligently expresses a defective character trait, the result in turn of a morally defective character. (Bayles 1982:5-20) In the case of the (private) individual defendant, John Smith, John Smith may be said to be morally deficient if he either, knowingly, and, therefore recklessly, or negligently causes death to another through having too much alcohol in his bloodstream while driving. In an analogous way, a corporation upholds a morally deficient culture if it permits or tolerates the dumping of poison into a well or river –– it would do this either, knowingly, and therefore recklessly, or negligently, thereby causing harm, even death to those who draw water from the well. But if the corporation could be said to be morally deficient, and therefore responsible for the harm, it could also be held legally responsible. Companies today cannot be viewed as a simple conglomeration of individuals. (Horder 1993:193-215) In other words, a corporation could most certainly be held responsible for manslaughter through recklessness (which requires mens rea) or gross negligence (which does not require mens rea). Furthermore, a corporation by failing to implement the necessary safety measures may also be said to be guilty of gross negligence as was the case with the Herald of Free Enterprise.

The great issue concerning all this problematic is about the efficacy of censuring corporations. The types of sanction, presently available, range from corporate inspection, hostile publicity, and community service to fines, but not imprisonment. In Wells’s opinion, these measures are all ineffective, and that a combination of fines and imprisonment of directors will probably be the most effective punishment. If so then, one must lean on the socalled identification theory, as ultimately, it would be the really top managers who justifiably ought to be “carrying the can”, both from the moral and the legal points of view, as far as incarceration is concerned.

The Practice J. Horder calls our attention to the fact that criminal culpability is not merely a question about theorising the notion itself in the abstract; the debate necessarily reflects the values of our society in which the law is embedded.

(Criminal) law reflects the cultural significance attributed in our society to a particular relationship between chance, fate, and responsibility, and to the fear of force or coercion over and above other motivations to commit crime. … Our criminal law shows itself to be the product of the shared history of cultural-moral evolution, assumptions, and conflicts that is the mark of the community principle. (Horder 1993:193-215) This indicates that the difficulty about applying criminal responsibility to corporations is not only due to the inadequacy of the individual theory of responsibility but also to the values, which inform that theory and the law, which endorses it. As Clarkson expresses it: “When a doctor, for instance, kills through gross negligence, a prosecution for manslaughter can, and sometimes does, follow. When the companies kill and injure, however, the practice is different. … When persons are killed or seriously injured at work (even when they are not employees), the typical response is to describe this as an “accident” (Clarkson 1996:558).

This explains why in general prosecutions of corporations are rare, and even when they occur, the law is applied very softly, which may be due in particular to three interrelated causes. First, only in rare cases is there a police inquiry, although there is always a coroner’s inquest. Second, sometimes the establishment of the offence does not take into account the injury caused and ignore the consideration of levels of culpability. Third, very soft sentences are applied with relatively light fines as the preferred mode. As Bergman underlined, “the prosecutions appear criminal in name only.” (Bergman 1993:14) In the case of the Herald of Free Enterprise, it was only in November 1987, eight months after the disaster and three months after the publication of the public inquiry report that the police initiated a criminal investigation. 3 However, the investigation was very limited in scope due to the absence of applicable criminal offences.

Vol. 3 No. 6 [Special Issue – March 2013] International Journal of Humanities and Social Science The only crime applicable to the corporation was reckless manslaughter, but for the applicability of this crime there was the need of proof that a senior officer in the corporation had acted recklessly. As Wells argues, the

applicability of recklessness supposes two elements:

(a) she does an act which in fact creates an obvious (and serious) risk of causing physical injury and (b) has either failed to give any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has none the less gone on to do it. (1998b:788-801) However, negligence and recklessness under the identification doctrine could only be considered if a senior officer of the corporation was identified as culpable. This is the drawback previously mentioned about the identification doctrine, the fact that a corporation under this doctrine is not considered a person. However, that even if one were to acknowledge the corporation as a moral/legal agent, it remains the case that punishment for manslaughter, either under recklessness or gross negligence, must involve recognising that the suitable agent(s) to incarcerate are those at the top of the management in a corporation.

However, this is not the only difficulty in terms of attributing negligence and recklessness to a corporation.

Another difficulty is related to the fact that the application of responsibility to directors concerns, at most, only fiduciary matters, but does not traditionally apply to concern about safety. 4 According to the Sheen Report, in the case of the Herald of Free Enterprise, although it was the case that at least two of the seven litigants “were sufficiently senior to be identified”, (Mr. Develin, director and chief superintendent and Mr.Ayers, director, and group technical director), nevertheless, none of them was convicted. (See the Sheen Report.) The absence of proper definitions concerning roles and individual responsibilities or as mentioned in the words of Mr. Owen (a member of the Council for the National Union of Seamen) “a vacuum at the centre” (Sheen Report:15) was one of the causes of the disaster and also the reason why senior officers escaped from conviction.

Under English criminal law (at least in recent years), only one corporation was ever convicted of manslaughter.(Midgley 1994:1-6) According to Clarkson there are two main reasons for this. The first is related to the media, the state and even to the large corporations that shape and influence public attitudes. As previously mentioned, when persons are killed or injured at work it is typical to describe this as “accidents”. The Health and Safety at Work Act 1974 is an attempt to increase safety and prevent “accidents” at work. This is in sharp contrast to the offences that individuals commit outside their workplaces involving harm. These differences of structures contribute to the general sense that death and injuries at work are not crime. The main purpose of Health and Safety Executive (HSE) is to enforce legislation with the aim of notifying corporations that particular matters need attention. When injuries or deaths occur in a corporation normally the investigation is conducted by the HSE.

Another reason has to do with the fact that the traditional penal mechanism geared to individual wrongdoing does not take into account the structures of large corporations. In the case of the Herald of Free Enterprise, as I have mentioned earlier, it is not certain who within the company was responsible for safety. The individuals who were directly involved in the disaster were Mr. Stanley (the assistant bosun) who failed to close the bow doors; Mr.

Sabel (the bosun) who also failed to check and supervise Mr. Stanley; Mr. Lewry (the captain) who started the over-crowded vessel at maximum speed without verifying that the doors had been closed; and finally the corporation Townsend Car Ferries Limited which had been notified of previous open-door incidents without taking any real measures to rectify the matter. In June 1989, after fifteen months of police investigation, Mr.

Stanley, Mr. Sabel, Mr.Alcindor, Mr. Ayers, Mr. Develin, Captain Lewry and Captain Kirby were charged with manslaughter and P&O European Ferries 5 was charged with corporate manslaughter. Nonetheless, one year later, on October 19th, after 27 days of a trial expected to last five to six months, the judge dismissed the case by instructing the jury to find the litigants not guilty of manslaughter. The conclusion failed to prove that the litigants should have noticed the possibility of the Herald sailing with its doors open to be “an obvious risk”.

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