Corporate Criminal Liability

Question 1

What is the doctrine of vicarious liability?

Answer 1

1. One person can be held responsible for the acts of another as if they were his own acts
2. Applied in three situations:
   - Statutory offences which explicitly or implicitly impose the possibility of vicarious liability
   - Where courts’ interpretation allows for vicarious liability
   - When a statute imposes vicarious liability for the conduct of any person to whom statutory duties have been delegated

Question 2

What are the two steps of vicarious liability?

Answer 2

1. The conduct of the individual must fulfil both Mens Rea and Actus Reus
2. The liability is copied and attributed to the corporation via the legal relationship between the individual and the legal entity

Question 3

What are the issues with vicarious liability?

Answer 3

1. There can be no corporate liability if there’s no individual liability
2. There can be corporate liability even if there’s no corporate fault

Question 4

What is the identification doctrine?

Answer 4

1. Used in EN and EU
2. The corporation is seen as a collectivity of individuals and is identified through its legal organs or other natural persons
3. The acts and mental states of a corporate officer (the directing mind of the corporation) are deemed to be the acts and mental states of the corporation

Question 5

What are the issues with the identification doctrine?

Answer 5

1. There can be no corporate liability if there is no member to which the commission of the offence can be traced
2. Does not take into account the dynamic of corporations
3. May be too difficult to identify one (or several) persons whose conduct can be attributed to the corporation
4. Makes it highly easier to hold smaller corporations liable - ‘It works best where it is needed the least and works worst where it is needed most’

Question 6

What is the Corporate Manslaughter and Corporate Homicide Act 2007?

Answer 6

1. Criminalises corporate manslaughter
2. Criterion:
   - (i) A relevant duty was owned to the victim by the organisation
   - (ii) The breach of that duty was a result of the way the organisation had organised and managed its activities
   - (iii) A substantial element of the breach of the duty was due to the way the senior management staff had organised and managed its activities
   - (iv) There was a gross breach of the duty of care - The conduct falls far below what can reasonably be expected of the organisation in the circumstances
   - (v) The victim’s death was caused by the breach of that duty

Question 7

How is Corporate Criminal Liability dealt with in NL?

Answer 7

1. Realistic approach – Criminal conduct will be attributed to the corporation
2. Criterion:
   - (i) Working for the corporation due to employment or for other reasons
   - (ii) Conduct corresponds with the normal corporate management
   - (iii) Conduct benefited the corporation
   - (iv) Power (hierarchy) and acceptance (of the risk) by the legal entity
3. Issues:
   - Criterion was established by case law and can be changed any time by the courts
   - Do all of the criterion have to be fulfilled?

Question 8

How is Corporate liability dealt with in GR?

Answer 8

1. Corporations are not criminally liable - Corporations do not have the power to act and cannot be culpable
2. Instead, German law uses administrative liability – It imposes a fine on the corporation:
   - (i) The representatives have committed a crime or a criminal offence
   - (ii) By means of which duties incumbent upon the legal entity have been breached
   - (iii) Or the legal entity has gained/was supposed to gain from it
3. Issues:
   - A natural person must have committed the offence - Only someone with a leading position
   - It can be difficult to identify the wrongdoer - If it cannot be identified, it is enough that it is part of the list mentioned in the article, even if not one person can be pointed out

Question 9

What is Colvin’s idea of criminal liability?

Answer 9

2 changes should be made:

1. Recognition of a duty to guard against the risk that the corporation’s operations, structures or resources may be used to cause harm - The scope is broader because it allows for corporate liability even when there is no individual fault
2. A corporation should be held to have actively committed the conduct elements of the offence when its occurrence was caused or encouraged by the culture of the corporation - Narrower because the corporation can only be liable when it committed a fault - Requires proof that the corporate culture positively favoured the commission