Abstract
A corporation is an artificial being that has an entity separate and distinct from its board of members and the workforce behind it. As corporations are a major player in economic enhancement and development, the state confers upon them numerous legal rights to vouchsafe their existence. However, the modernity of times screams of the scant laws to secure people’s rights that corporations manage to disrespect. There is a serious call to upgrade our laws addressing corporate criminal liability. Egregious labor violations, dissolution to escape criminal liability, even downright trespass of criminal laws are only some of the issues that are escalating at present time. Albeit there is jurisprudence on the piercing of the corporate veil to make the directors liable for corporate criminality, the laws to be resorted to are still a work in progress. Corporate misconduct has been addressed by civil, administrative and criminal laws. However, the criminal liability of corporations has been more controversial. Critics have expressed the efficiency and consistency with the principles of criminal law (Pop, 2006, 2-3). The distinction of the person between the corporation and its directors should not work as blanket protection in cases when crimes are committed by the corporation. For a crime to exist, mens rea has to be established. And a corporation can only intend through its directors. The directors are the ones who think and consequently act for the corporation. The critics’ position is well-taken. Vacuums will be created when we try to apply criminal laws intended for a natural person. But as people are becoming more and more innovative in utilizing corporations as the perfect cover-up in transgressing our laws, we have no choice for now but to apply the present criminal laws available and wait until the bills being lobbied for corporate criminal liability to be ratified. If we are going to allow administrative and penal sanctions to make up for crimes committed by corporations, then we are looking into an unimaginable increase in corporate homicide and manslaughter in no time. In essence, our criminal laws have to be applied to corporations with the same stringency and fervor when applied to man. Consequently, the different branches of the government especially the judiciary cannot allow corporations and their operators to circumvent the laws meant to protect the citizenry.
Introduction
Are companies and corporations capable of committing a crime? A corporation is a legal, rather than physical, body that can be seen as a legal fiction, existing separately from incorporators, and functioning through people acting as its agents (Laurel and Natalya 226). The establishment of the capability of corporations to commit crimes can be traced to the middle of the nineteenth century, where courts started holding corporations liable. The developments of the laws of corporate criminal liability were surrounded by many controversies, providing food for debates over different theoretical bases of corporate criminal liability. The latter led to corporate misconduct being addressed by different law agencies, using civil, criminal, and administrative laws. Accordingly, the recent increase in corporate illegal conduct which can be seen through numerous corporate scandals demonstrated that “corporations as entities can sometimes take on human attributes such as corruption, blameworthiness, and guilt” (Vu 459). In an attempt to clarify the issue of corporate liability the present research will provide an extensive examination of corporate liability, its development, theoretical foundations and doctrines as well as their application in the legal context.
Historical Background
Chronological researches on corporate crime in Europe are relatively few, compared to those from North America, where the contribution of non-American researchers can be seen in “a small but growing number of contributions from Britain and Australia” (Gobert and Punch 3). The attention to corporate crime was brought through the efforts of Edwin Sutherland, who coined the term white-collar crime over 60 years ago (1). The foundation of such attention can be seen through his published research, in which he examined “70 large corporation and 15 public utilities” as well as executives acting on behalf of the corporations, breaking the law and frequently escaping prosecution. (3). It was then outlined that many corporate offenses do not fit within the limits of criminal law, allowing corporations to escape the “the full weight of criminal law, as well as criminal sanctions and the usual stigma attached to a criminal conviction (3).
A landmark case in American corporate liability practice is the case of New York Central & Hudson R.R. Co. v. the United States, which decision in the Supreme Court created corporate criminal liability. In the aforementioned case concerning the criminal offense was the railroad company gave favorable shipping rates to a sugar company. The court, in addition to recognizing the liability of the corporation for the acts of their employees, also permitted corporations to be held criminally for the conduct of the employees (Hasnas 1337). Generally it can be stated that the formative period in the development of corporate liability in the UK was similar, i.e. from 1870 to 1930, where the distinction between mens rea and strict liability offenses were not taken into consideration by the court (Wells). Accordingly, the cases of corporate did not bring much attention, mostly involving statutory public welfare offenses, e.g. Griffiths v Studebakers, Ltd. L.R. (1924) (J). In such cases, the issue at hand was also vague, which can be seen from a quote of the words of Atkin, J., in Mousell Bros. v London and North Western (1917):
While prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servant (J 231)
In that regard, it should be stated that the criminal liability did not clearly emerge until three 1944 cases, Moore v Bresler (1944), R v ICR Haulage (1944), and DPP v Kent and Sussex Contractors (1944), in which the company was identified with the acts of senior managers, rather than “being accountable for the transgressions of its employees” (818). A landmark case in such a matter can be seen in Tesco v Nattrass (1972), which contribution can be seen to the contribution to the doctrine of alter ego liability, and the aspect of hybrid offenses, in which strict liability offenses and direct offenses were combined (Wells 817).
Assessing Common Law Theories of Corporate Criminal Liability
The principles of common law can be seen as parts of the dilemmas involving the prosecutions involving corporate criminal liabilities. In that regard, the earliest examples of corporate liability involved investigating whether existing criminal laws, principles and doctrines applied to inanimate legal fiction. Accordingly, it was found that the concepts constructed under common law powers “can be torn down by virtue of those same powers, and should be when there sound and valid reasons for doing so” (Gobert and Punch 54). Thus, the development of corporate criminal liability was gradually developing through “reactions to problems that courts historically encountered in assigning criminal blame to corporations” (Geraghty 328). The central elements of criminal law are the concepts of actus reus, mens rea, and maxim of actus non facit reum nisi mens sit rea, i.e. wrongful act, wrongful state of mind and an act is not wrongful unless accompanied by a wrongful state of mind respectively (Minkes and Minkes 61). Accordingly, the development of corporate criminal liability can be considered as an assessment of how the aforementioned aspects in terms of individuals can be imputed or attributed to the corporate entity (63).
Definition of Corporate Criminal Liability
Corporate criminal liability might vary in its definition, where the main focus usually revolves around holding the corporations liable for criminal offenses. One of the definitions can be seen in that corporate criminal liability is an extension of the scope of the criminal system to include corporations (Lederman 642). Another definition can be seen in identifying corporate criminal liability as a form of vicarious rather than group liability, where the liability of a corporate entity extends merely to the individual illegal conduct of a corporate employee, rather than extending to a group of employees to be punished jointly for the act of one member (Gruner 2-3).
The Theory
The theoretical basis for corporate criminal liability might be seen as an examination on several levels. One of such aspects can be related to moral responsibility, where some scholars argue that moral responsibility can be extended to corporate entities. The latter can be based on several factors, where the possession of an internal structure in a company, based on which the policies are determined and established, is one factor. Such factor allows the company to act in accordance with the output of these policies intentionally (Hasnas 1330). Another argument qualifying the corporations to be morally responsible is their “capacity to use moral reasons in decision-making [and are] capable of controlling the structure of [their] policies and rules” (1330).
In addition to Fauconnet’s theory, in which the corporate liability is based on the distinct legal personality of corporations, the theoretical argument by Fisse and Wells oppose the applicability of moral aspects to corporations, as corporations can and often do exceed the sum of its individual parts, where the true responsibility of corporations can be located in the organizational structure, policy, procedures and culture (Ferguson).
In accordance with such distinctions, there is nevertheless, an implication of traceability to individuals. In that regard, the most prominent theoretical framework, which is considered as influential in determining corporate liability and its usage in legal tests, is the methodological individualist philosophy. The proponents of the methodological individualist philosophy, such as Popper (1957), Hayek (1949) and Wolf (1985) argue that “all social and economic phenomena can be attributed to human agency and human agency alone (Minkes and Minkes 61). In other words, if the actions are traceable, then they can be attributed to individuals. The merit in such philosophy is mainly in respect of crimes consisting of identifiable affirmative acts, while such philosophy is incapable of determining the liability in cases when the fault is a failure to take preventive actions. Accordingly, when an omission takes place it is hard to determine who is to blame, the people who established the policy, those who approved it, or those who approved the proposal in the first place (Minkes and Minkes 62). In such cases, the applicable theory is the organic theory which views the company as a holistic entity with an identity “separate and distinct from its share holders” (Minkes and Minkes 61). The latter, although more suitable to the realities of the corporate world, as the ownership, management and employees of the company are constantly changing, while the company remains, this theory also has an influence in determining corporate liability. With both approaches being used, where companies at times are prosecuted irrespectively from their employees, it is nevertheless, apparent that the individualist approach is more influential in that matter.
The Law of Corporate Criminal Liability
The law of corporate criminal liability states that the company can be held liable for acts, omissions and failures of agents acting within the scope of their employment (Geraghty 327). The determination of imputing employees’ means rea and actus reus to corporations is based on determining whether the employee acted within the scope and the nature of his/her employment, acting, at least in part, to benefit the organization, and the acts and the intent of the employee must be imputed to the organization (Geraghty 329). The aforementioned can be seen as the prevailing doctrine in American law, while in the UK, the adopted doctrine was that established by the rule law of the previously mentioned case of Tesco v Nattrass, which is known as the identification doctrine. The doctrine states that “a company cannot be identified with a crime committed by a person lower down in the corporate hierarchy”, and thus, the company can be identified with acts of an “individual who is sufficiently senior within the corporate structure as to represent metaphorically the “mind” of the company” (C.M.V.Clarkson).
Corporate Mens Rea
The doctrine of corporate criminal liability is drawn from several aspects from notions of direct corporate liability and corporate ethos or strategic mens rea. The main emphasis in the doctrine is an indication that other doctrines of corporate criminal liability ignore the realities of complex organizations, which if combined can “contribute to an ethos that permits or even encourages the commission of crime” (C.M.V.Clarkson).
The Issue Of Foreseeability
An important element of the concept of corporate mens rea or corporate intent is connected to the issue of foreseeability. The basis of such elements can be seen in the example where determining whether corporate practice or policy violated the law will require establishing whether it was “reasonably foreseeable that such policy would lead corporate agent to violate the law” (Vu 479). Such distinction might establish a different culpability criterion for organizations, which will allow the prosecution of acts where no specific agent is guilty. Connecting foreseeability to such notions, the latter might fall within the category of wilful blindness, or prosecution of crimes of specific employees. The latter might be represented in such issues as foreseeing the possibility of harm occurring, the creation of obvious and serious risk, or that consequences of certain corporate actions were virtually certain to occur from which intention may be inferred (C.M.V.Clarkson). The failure of foreseeing all of the latter can be seen as the basis of the identification of the reactive corporate fault.
Reactive Corporate Fault
Reactive corporate fault can be defined as “unreasonable corporate failure to devise and undertake satisfactory preventive or corrective measures in response to the commission of the actus reus of an offense by personnel acting on behalf of the organization” (Fisse and Braithwaite 48). The doctrine proposed by Fisse and Braithwaite solves one of the debatable aspects of corporate criminal liability, i.e. attributing intentionality to a corporate entity. In that regard, enacting corporate policies can be considered as an obvious representation of intentionality. Nevertheless, it can be stated that the proposed approach might have several limitations, as will be represented in the next chapters. The main area of limitations can be related to that the issue of determining intent can be exploited through establishing explicit policies and corrective measures, which will take off the responsibility from the company.
The timeframe is important in the analysis of the reactive model, specifically about the time of the commission of actus reus. In that regard, the important aspect is not in the general policies of compliance, which the company regularly updates, but in establishing what did the company propose in a specific actus reus.
Distinction Between Vicarious Liability and Genuine Criminal Liability
In setting the distinction between vicarious liability and genuine criminal liability can be seen in the absence of a men’s rea for the corporation. Genuine criminal liability can be seen as an issue of direct liability, in which the corporation acts themselves, rather than through the acts of the employees (Stessens 496). In such case men’s rea was of the company, rather than of the employees, where the example of such liability can be seen through cases of tax evasion, common law conspiracy, and the falsification of documents (Stessens 496). In vicarious liability, the intent of the employee was imputed to the company. In such a case, the knowledge of the company of the act is not necessary, as well as the necessity to act by itself, and thus, liability is imposed on the employer (Lederman).
Corporation and Criminal Punishment
Individual Liability of Corporate Employee for Corporate Conduct
Within the scope of most corporate liability models, the individual liability is not ignored. Most models and legal systems prosecute both the corporation and the individual, so there are no possibilities for the individual to be shielded behind the organization (Stessens 518). Nevertheless, there were instances where the identification of the agent as the corporation led to the agent being immune to prosecution. Such disattribution heresy had significant judicial and academic support, mainly based on misunderstanding of the identification principle (Campbell and Armour 295).
Corporate or Personal Criminal Liability
Choosing between corporate and personal criminal liability, it can be stated that the arguments mostly are in favor of prosecuting corporations. One of such aspects is that employees do not have the full picture of the activities of the corporation. Additionally, the element of cost and benefit in corporations make them highly deterable, where most corporate leaders make decisions based, in part, upon their best assessment of whether they (or their company) might be prosecuted if their company undertakes certain actions” (Bucy 1438) Accordingly, as the punishments decrease the wealth of the companies, improving working practice is within the interests of the company, where shareholders and employees have an incentive to encourage and monitor better corporate practices” (C.M.V.Clarkson).
Additionally, considering that personal liability would not able to compensate that harm was done, corporate criminal liability, might provide such opportunity. The prosecution of companies has more beneficial effect, in terms of remedying harm, making victims whole, and preventing future harm, which is a larger context that will benefit society (Bucy 1439).
The Current Law’s Loose Standards
The vicarious approach toward imposing corporate liability is based on the definition of the scope of employment. In that regard, the definition of the scope of employment is so narrow that there were many instances when the companies were held accountable for the actions of employees of diverse ranks. Nevertheless, such standards are mainly based on a wide interpretation of the scope in each separate case individually, eliminating the effect of deterrence (Pollack 1396).
Arguments against Corporate Criminal Liability
The main argument against corporate criminal liability can be seen in that the fictitious entity of corporation might lead to that the ones punished being innocent third parties, e.g. shareholders and employees (Beale 1482). Another argument is based on the claim of the effectiveness of civil liability against the criminal, which accordingly is also punished excessively. The argument of true fault can be also seen as a common critique of criminal liability, where the imposition of liability is in cases with no true fault on the part of the company. The common element so such arguments, nevertheless, can be omitted if the scales of the corporate conduct could be assessed. In the latter, it can be seen that the development of new provisions to incorporate criminal liability can be justified (Beale 1504).
The mechanisms of corporate criminal culpability are mechanisms through which the companies can be held liable for their actions. In that regard, with many similarities, it can be stated that the basis of the differences is mostly connected to case law rules, different legislations and theoretical support. The present chapter provides an overview of the most common possibilities of proving corporate criminal culpability.
Identification Doctrine
The identification doctrine or the alter ego doctrine was derived from the vicarious liability doctrine, where the acts of the senior officers in the company are identified as the acts of the corporation itself. In that regard, making corporations liable, through individuals in the doctrine, was based on several aspects such as “the nature of the charge, the position of the officer or agent and other relevant facts and circumstances of the case” (Stessens 508). The clarification of these factors as well as the development of the test of corporate liability was based on the decision in Tesco v Nattrass case, which established the question “does the person control the corporation as the brains control the human body” as the main factor in determining whether individual or corporate liability is identified (Stessens 509). If omitting the brains and body allusions, it can be stated that the main basis of such test is the determination of the capability of acting individually on one’s own, e.g. members of the boards of directors, the managing director, and any person to whom all or part of management functions was delegated, so as to take control (509). Accordingly, in case the hierarchy of the company was structured in such a way as to avoid responsibility, ad thus, the allocation of responsibility would be difficult, e.g. no controlling officer takes decision or the existence of two or more controlling officers.
Aggregation Doctrine
The aggregation doctrine (also aggregate knowledge or collective knowledge) as a concept was the work of several federal courts in the United States, and largely was developed in response to areas not covered in other doctrines. To form a single mental element, where “[t]he body of knowledge in possession of each of the various agents is attributed to the corporation separately, relying on the known rules of the vicarious liability doctrine” (Lederman 662), different units can be aggregated into one criminal whole. Such doctrine can be seen as a satisfactory element for the corporation to be considered liable in instances where neither the wrongful state can be attributed to the corporation nor a single individual would possess the required men’s rea (Stessens 512). The latter can be considered at the same time as its main disadvantage, where innocent activities might turn into corporate acts of omission, each individually lacking the criminal intent (Lederman 663).
The problem with such an approach might be seen in that with such doctrine the main focus is outlining the main structural deficiencies in the company and policies that prevent the aggregate knowledge of employees to conduct an illegal act. Nevertheless, such doctrine is ineffective in deterrence as it fails to advise the companies to immunize themselves from criminal liability (C.M.V.Clarkson).
Vicarious Liability
Vicarious liability can be considered as the broadest term for corporate liability, from which other doctrines were derived. In broad terms, vicarious liability can be defined as the extension of the deeds of an employee or an agent to the corporation, to impose criminal liability on corporations. The basis of the doctrine is the concept of attribution, where the basis for establishing liability is dived into the process of establishing the elements of the employee offense and then, ascribing them to the employer, in accordance with the legal relationship between them (Lederman).
The tests currently implemented to determine the corporate liability in the United States and the UK, although varying in the main principle, are largely derived from the doctrine of vicarious liability. The criticism of vicarious liability can be seen in that the term is broad enough to only conclude the company is liable for the offense, without establishing the reason for the conclusion (Gobert and Punch). The general rule for such doctrine is for the employee to act in the course of the employment. The implementation of such doctrine on all offenses can be considered objectionable, specifically for serious crimes, such as manslaughter.
Management Failure Model
As implied by the title, the management failure model is the case when the management failed to take what is reasonably expected to prevent wrongful conduct. This model is limited to cases of manslaughter, where the offense of corporate killing was outlined in the Law Commission. The government version of the offence was delivered with the following wording,
an undertaking would be guilty of a corporate killing if ‘a management failure by the company [was] the cause or one of the causes of a person’s death’; and ‘that failure [constituted] conduct falling far below what [could] reasonably be expected of the company in the circumstances’” (Gobert and Punch 105)
The doctrine was fully realized in the UK through the Corporate Manslaughter and Corporate Homicide Act 2007, which is a landmark law allowing the companies to be held responsible for corporate manslaughter as a result of serious management failure (HSE). The law outlined the responsibilities of the corporation under the section of relevant duty care, which is defined to include employees or other persons working for the organization or performing services for it (UK Legislation).
Corporate Criminal Liability for Agents Action
Scope of Employment
The scope of employment is the first of the three inquiries used to determine the vicarious liability of corporation for the acts of its employees. Acting within the scope of employment is related to the authority of the employees, were meeting such requirements implies that the employee has the actual or apparent authority to engage in the act. The actual authority is intentionality authorizing the employee to act on the company’s behalf, while the apparent authority implies that a third party reasonably believes that the agent has the authority to perform the act (Geraghty 329-30).
Taking the notion of the scope and the nature of the employment, it can be seen that is contrary to the identification doctrine, liability can be imputed, regardless of the position of the employee. Nevertheless, it can be stated that the application of such test inquiry can be hindered by the fact that many companies adopt corporate policies, which can insulate the company from liability, however, the court might apply criminal liability nevertheless, although with reduced penalty.
For the Benefits of the Corporation
Such element of corporate criminal liability can be distinguished in that matter, as the fact of receiving a benefit of a particular act is enough to fulfill this condition. Despite such distinction the courts might choose different mechanisms to impute liability to the company, e.g. the act is not inimical to the interests of the company or the employee is acting for his/her own personal benefit. In that regard, it is easier to determine the conditions when the liability cannot be imputed in such scenarios, i.e. acts that are “expressly contrary to the interests of the corporation” (Geraghty 332).
Accordingly, it can be stated that the factor of intent might be difficult to establish, as in cases when the benefit was not required, it might surface, as long as the actions are not inimical to the interests. In that regard, it can be stated that the inclusion of this test might act as a prevention of corporations being held liable when they are victims of the act (Gruner 3-58). When there are no benefits or harm from a certain action of an employee, the court might decide to look at the preventive measures, which the company had the opportunity to implement. In case such managerial opportunities were clear, the court might impose corporate criminal liability “to encourage control over employee offenses” (3-58).
Significance of the Agents Employment Status
This factor is mainly related to the identification doctrine, and accordingly when of the methods of imputing the intention of the employee to the organization. Taking the notion that the company as an entity is always acting through its representatives, and thus, the status of the employee is decisive when analyzing whether the behavior and the thoughts of the employee are representative of the corporation. It is logically acceptable to assume that employees from lower ranks would be sufficiently limited in representing the actions and the thoughts of a legal body.
It can be stated that the formal status, as to what capabilities to make decisions the employee hold, is irrelevant in that regard. The tests used in the English law make use of the factor of independence to make a decision, where the main question is whether “the person is part of the directing mind and will of the corporation, regardless of his or her formal status” (Stessens 509). Accordingly, the latter might not be considered contradictory, as independence is usually correlated with the status of employment, unless the authority of decision making was delegated was not delegated to a lower-rank employee.
Corporate Defences
Despite the fact that the doctrines of corporate criminal liability are based on the premise of establishing the guilt of the corporation, it can be stated that many pitfalls can be used by the organizations to escape liability. Such pitfalls are mainly seen in the realities in which corporations operate. In that regard, even when evidence of guilt exists within the organization it is difficult to determine to which agent intent it can be attributed. Additionally, there is also such aspect as compliance programs, which introduced by the organization can be seen as an exploitation of the current laws of corporate vicarious liability, through which they can escape corporate liability.
Accordingly, the identification doctrine implemented in the UK can also provide loopholes through which the organization can escape liability. Striping control offices of the ability to make decisions, or structuring the hierarchy of the company in such a way as to avoid responsibility can be seen as a director of such exploitation. Nevertheless, it should be stated that as with companies escaping responsibility, the tendency of making the company liable is more applicable to current laws of corporate liability. In that regard, even if the company took all the measures to prevent wrongdoing within its structure and policies, they still can be convicted of a corporate crime, leaving no possibility, specifically for small companies, to immune themselves from such cases. Accordingly, the conviction of a company, which lacked criminal intent, might lead to most severe consequences for its businesses, not limited to the loss of all kinds of licenses (Thompson 1326).
Preventing Corporate Crime
The prevention of corporate crime should be implemented in such a way as to include a deterrence effect. In that regard, such prevention would lead to that corporations would be taking all the possible steps to eliminate the possibility of illegal corporate conduct, and at the same time protect corporations that reasonably do so, from prosecution. With the corporations taking all reasonable steps to police themselves, through introducing effective compliance programs, the company would detect law violations prior to their occurrence. It should be stated that the implementation of such compliance programs should go beyond merely presenting a list of rules and policies, but also, a system of effective monitoring, evidence of which should be presented to the court, when determining the liability of the corporation.
Accordingly, in case of violations do occur no distinctions should be made to the application of criminal laws to companies. The application of criminal liability laws has several advantages over civil liability. Criminal liabilities are better enforced, with more powerful enforcement agencies, and at the same time involve stronger procedural protection (C.M.V.Clarkson). Not to mention the symbolism and the message carried in criminal liability, more related to the basic principle of crime and punishment.
Conclusion
Corporate Criminal Liability in Modern Day World – India as Case Study
The significance of an identified corporate liability can be seen through the extension of the implementation of law beyond American and European practices. In that regard, an illustrative example is the example of India, a developing country, in which despite the importance of corporate criminal liability, “it has not been defined under any statute, rule or regulation” (Suri and Jhusiwala). The confusion can be seen through the fact that Indian criminal liability is scattered across several statutes. Nevertheless, the theoretical foundation of corporate liability can be seen through the influence of English law. Accordingly, under the present penal system, both corporations and the managing officers can be held liable for any illegal conduct. Despite being scattered over many statutes it can be stated that the major law governing corporations in India is “codified in The Company Act, 1956 and the definition of “Corporation” as given in the Act under Section 2 (7) includes a company” (Kumar 7).
In Indian legislation, the separation of the legal entity and the individual led to making provision through which the individual can prosecute out of the corporation “veil”, where “the benefit of separate legal entity will not be available and the court will presume the absence of such separate existence” (7).
Corporate Criminal Liability in Nigeria
The issue of corporate liability in Nigeria can be considered in a worse state, where the issue of distinct corporate personality is ignored. Additionally, the nature of the crime for which corporations might be liable is white-collar, and in that regard, the corruption in Nigerian society prevents effective prosecution. The basis of the corporate criminal liability in Nigeria is that of the case law which adopted the organic theory, introduced in the paper. The imputation of criminal liability requires the presence of involvement and guilt of “directing mind and will of the corporation”, the identification of which can be seen as one of the issues that were before the Nigerian legislation (Okoli 36). The advent of Companies and Allied Matters Act (CAMA) provided more strict regulations of the conduct of corporations. The achievement of the act can be seen in providing clarifications of the law on corporate liability (Okoli).
Impossibility of Corporate Criminal Liability
The enforcement of the Corporate Manslaughter and Corporate Homicide Act 2007 can be seen as a step further in clarifying whether it is impossible to hold the corporation criminally liable for homicide. It should be stated that the enforcement of the act is a perfect example, where the required effect of punishment is combined with deterrence, as it can be seen that the focus of the law is on the working practices of the corporation, rather than “based on any immediate, operational negligence causing death” (Laurel and Natalya 228). The expansion of such a management failure model as well as the requirement of a compliance program can be seen as an effective step for the companies not only to be held liable, but also to reduce corruption and white-collar crime in general through self-regulation.
A Reform for Nigeria
Finally, it can be stated that a mix of the aforementioned approaches, i.e. the application of the criminal laws through the management failure model, an example of which can be seen in Corporate Manslaughter and Corporate Homicide Act 2007, would be beneficial step for reform in Nigeria. Being in the rating of most corrupt nations, the implementation of such model, not only in homicide cases, might help the business to gradually turn toward self-regulation. In that regard strict punishment approaches would not be helpful, ignoring deterrence as the desired effect.
Works Cited
Beale, Sara Sun. “A Response to the Critics of Corporate Criminal Liability.(Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance).” American Criminal Law Review 46 4 (2009): 1481(25). Print.
Bucy, Pamela H. “Corporate Criminal Liability: When Does It Make Sense?(Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance).” American Criminal Law Review 46 4 (2009): 1437(21). Print.
C.M.V.Clarkson. “Corporate Culpability”. 1998. Web Journal of Current Legal Issues. University of Newcastle. Web.
Campbell, Neil, and John Armour. “Demystifying the Civil Liability of Corporate Agents.” The Cambridge Law Journal 62 2 (2003): 290-303. Print.
Ferguson, Gerry. “Corruption and Corporate Criminal Liability”. 1998. International Centre for Criminal Law Reform and Criminal Justice Policy. Web.
Fisse, Brent, and John Braithwaite. Corporations, Crime, and Accountability. Theories of Institutional Design. Cambridge ; New York: Cambridge University Press, 1993. Print.
Geraghty, Annie. “Corporate Criminal Liability.” American Criminal Law Review 39 2 (2002): 327(27). Print.
Gobert, James J., and Maurice Punch. Rethinking Corporate Crime. Law in Context. London ; Dayton, Ohio: Butterworths/LexisNexis, 2003. Print.
Gruner, Richard S. Corporate Criminal Liability and Prevention. Business Crimes Series. New York, N.Y.: Law Journal Press, 2004. Print.
Hasnas, John. “The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability.(Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance).” American Criminal Law Review 46 4 (2009): 1329(30). Print.
HSE. “About Corporate Manslaughter”. 2010. Helath and Safety Executive. Web.
J, W. I. “Corporation. Criminal Liability. Mens Rea. Griffiths V. Studebakers, Ltd. L.R. [1924] 1 K.B. 102.” The Cambridge Law Journal 2 2 (1925): 229-31. Print.
Kumar, Abhimanyu. “Corporate Criminal Liability”. 2009. Social Science Research Network. Web.
Laurel, J. Harbour, and Y. Johnson Natalya. “Can a Corporation Commit Manslaughter? Recent Developments in the United Kingdom and the United States.” Defense Counsel Journal 73 3 (2006): 226. Print.
Lederman, Eli. “Models for Imposing Corporate Criminal Liability: From Adaptation and Imitation toward Aggregation and the Search for Self-Identity.” Buffalo Criminal Law Review 4 1 (2000): 641–708. Print.
Minkes, John, and A. L. Minkes. Corporate and White-Collar Crime. Los Angeles ; London: SAGE, 2008. Print.
Okoli, Chijioke. “Criminal Liability of Corporations in Nigeria: A Current Perspective.” Journal of African Law 38 1 (1994): 35-45. Print.
Pollack, Barry J. “Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability.(Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance).” American Criminal Law Review 46 4 (2009): 1393(23). Print.
Stessens, Guy. “Corporate Criminal Liability: A Comparative Perspective.” The International and Comparative Law Quarterly 43 3 (1994): 493-520. Print.
Suri, Priti, and Rohan Jhusiwala. “Corporate Criminal Liability: The Case of Baazee.Com”. 2009. India Business Law Journal. Web.
Thompson, Larry. “The Blameless Corporation.(Corporate Criminal Liability)(Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance).” American Criminal Law Review 46 4 (2009): 1323(6). Print.
UK Legislation. “Corporate Manslaughter and Corporate Homicide Act 2007”. 2010. Office of Public Sector Information. Web.
Vu, Stacey Neumann. “Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent.” Columbia Law Review 104 2 (2004): 459-95. Print.
Wells, Celia. “Corporate Liability and Consumer Protection: Tesco V Nattrass Revisited.” The Modern Law Review 57 5 (1994): 817-23. Print.