The Attribution of Culpability to Limited Companies

Cambridge Law Journal

Volumn 55, Issue 3, 1996, Pages 515-546

  Sullivan, G R ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 85007981386     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300100492     Document Type: Article

References (95)

1. R v. I.C.R. Haulage Ltd. [1944] K.B. 551.
2. D.P.P.v. Kent and Sussex Contractors [1944] K.B. 146.
3. That an indictment for manslaughter could lie against a company was assumed by the Divisional Court in R. v. Coroner for East Kent, ex parte Spooner (1989) 88 Cr.App.R. 10
4. decided at trial in R. v. P. & O. Ferries (Dover) Ltd. (1991) 93 Cr.App.R. 10
5. applied in R. v. O.L.L. Ltd (10 December 1994, Crown Court).
6. Currently murder could not be charged against a company because of the mandatory penalty and other crimes may require and be confined to human perpetration as is apparently the case for any crime which requires an act of driving: Richmond-on-Thames B.C. v. Finn & Wheeler Ltd. [1989] R.T.R. 354.
7. An idea made explicit by the Privy Council in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Ltd. [1915] A.C. 705
8. confirmed and elaborated by the House of Lords in Tesco Supermarkets Ltd V. Nattrass [1972] A.C. 153.
9. C. Wells, Corporations and Criminal Liability (Oxford 1993) at pp. 103–111
10. B. Fisse, “Consumer Protection and Corporate Criminal Responsibility”, (1971) Adelaide L.R 113.
11. Meridian Global Funds Management Asia Ltd. v. Securities Commission [1995] 2 A.C. 500, 506–507.
12. [1915] A.C. 705.
13. E.g. L.C.B. Gower, Principles of Modern Company Law, 5 edn. (London 1992), at pp. 193–194.
14. At the present time corporate liability for manslaughter would seem to be predicated on identification: R. v. Coroner for East Kent, ex parte Spooner (1989) 88 Cr.App.R. 10
15. R. v. Stanley and others 19 October 1990 (C.C.C. No. 900160).
16. Salomon v. Salomon [1897] A.C. 22.
17. In particular. Lord Diplock in Tesco Supermarkets Ltd v. Nattrass [1972] A.C. 153 advocated restraint in findings of identification in order to demarcate clearly between what he characterised as direct liability from vicarious liability.
18. As in the recent civil case of El Ajou v. Dollar Land Holdings plc [1994] 2 All E.R. 685.
19. Contrast El Ajou with the approach of the Court of Appeal in R. v. Redfern [1993] Cnm.L.R. 43.
20. As in The Lady Gwendolen [1965] P.294.
21. [1972] A.C. 153, 199.
22. [1993] 1 W.L.R. 1037.
23. see too National Rivers Authority v. Alfred McAlpine Homes East Ltd. [1994] 4 All E.R. 286.
24. In the view of Professor Sir John Smith, [1993] Crim.L.R. 626.
25. [1993] 1 W.L.R. 1037, 1042 (Staughton L.J.).
26. [1995] 1 A.C. 456, 474 (Lord Nolan).
27. [1995] 2 A.C. 500.
28. Securities Amendment Act 1988 (New Zealand) s. 20(3) (4).
29. [1995]2 A.C. 500, 511.
30. An approach welcomed by Professor L.S. Sealy, [1995] C.L.J. 507.
31. [1995] 2 A.C. 500, 507.
32. A.C., at p. 507.
33. Following Pioneer Concrete, and approving the decision in Moore v. I. Bresler Ltd. [1944] 2 All E.R. 515.
34. All E.R., at pp. 511–512.
35. Although Lord Hoffmann was concerned to read down Lennard's Carrying and Tesco Supermarkets V. Nattrass as cases confined to the construction of the statutory provisions at issue in the respective cases, he approved identification as the appropriate rule of attribution for both cases: [1995] 2 A.C. 500, at pp. 508–509.
36. 2 A.C., at p. 512.
37. J.C. Smith and B. Hogan, Criminal Law (7th edn., London 1992) pp. 170–185.
38. Criminal Law
39. [1994] 1 W.L.R. 541.
40. C. Wells, Corporations and Criminal Responsibility (Oxford 1993)
41. B. Fisse and J. Braithwaite, Corporations, Responsibility and Corporate Society (Cambridge 1993)
42. C.M.V. Clarkson, “Kicking Corporate Bodies and Damning Their Souls” (1996) 59 M.L.R. 557.
43. P. French, Collective and Corporate Responsibility (New York 1984)
44. M. Dan-Cohen, Rights. Persons and Organisations: A Legal Theory for Bureaucratic Society (California 1986).
45. M. Gilbert, On Social Facts (New York 1989).
46. See in particular On Social Facts note 48
47. and B. Fisse and J. Braithwaite, “The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability” (1988) 11 Sydney Law Review 468.
48. Sydney Law Review note 48, chap. 2.
49. Sydney Law Review, at p. 48.
50. Murder (Abolition of Death Penalty) Act 1965.
51. Gross negligence would now be the culpability standard for corporate manslaughter in the light of Adomako (1995] 1 A.C. 171
52. which supersedes Seymour [1983] 2 A.C. 493.
53. A.C. note 48, at pp. 47–50.
54. Concern is frequently expressed about the adequacy of the resources and commitment given to enforcing safety legislation: e.g. D. Bergman, Deaths at Work: Accidents or Corporate Crime? (London 1991)
55. The Perfect Crime?: How Companies Escape Manslaughter Prosecution (London 1994)
56. Wells, The Perfect Crime?: How Companies Escape Manslaughter Prosecution note 48, chaps. I and 2
57. R. Baldwin Rules and Government (Oxford 1995) pp. 125 etseq.
58. Discussed in Wells, Rules and Government note 48, at pp. 132–133.
59. G.R. Sullivan, “The Particularity of Serious Fraud” in Pressing Problems of Law, ed. P. Birks (Oxford 1995) 99, at pp. 102–103.
60. In criminal law contexts, the theory has been rejected, see citations at note 16. The Court of Appeal in Wilsher v. Essex Area Health Authority [1987] Q.B. 730
61. in Bull v. Devon Area Health Authority [1993] 4 Med. L.R. 116 canvassed the possibility of hability in negligence on the basis of a finding that a system was deficient, a form of direct liability not dependent on proof of negligence on the part of any individual.
62. Wells, Med. L.R., note 48, at p. 88.
63. The Philosophy of Right (translated by T.M. Knox), especially at pp. 279–283.
64. R. Scruton, “Corporate Persons” (1989) Proceedings of the Aristotelian Society (Supplementary Series) 239.
65. Given vivid expression by Lord Denning in Bolton (Engineering) Co. Ltd. v. Graham & Sons [1957] 1 Q.B. 159, 172.
66. Fundamental Legal Conceptions (Yale 1919) at pp. 198–200; 220 et seq.
67. “Definition and Theory in Jurisprudence” (1954) 70 L.Q.R. 37.
68. It will be recalled that Hohfeld barely acknowledged any separate legal existence inhering in companies, regarding references to companies as, essentially, a shorthand account of legal relationships between individuals, a view cogently attacked by Hart who allowed companies a reality but a purely legal one. The Hohfeldian view retains currency for scholars who would reduce companies to a “nexus of contracts” as in F. Easterbrook and D. Fischel, The Economic Structure of Corporate Law (Harvard, 1991) chap. 1.
69. The Economic Structure of Corporate Law. note 10.
70. The Economic Structure of Corporate Law, pp. 35–62.
71. A very similar theory is offered by G. Teubner, ‘The Essence of a Legal Person’ (1988) 36 Am. J. Comp. L. 130.
72. Am. J. Comp. L., chap. 3.
73. For a view that French offers merely a semantic account of the agency of companies rather than a substantive account see G. Ouyang and R. Shiner, “Organisations and Agency” (1995) 1 Legal Theory 283. His semantic account, they argue, means no more than that sentences which ascribe intentionality to a company as in “company x intends to diversify its range of products”, have a semantic truth value. As the authors maintain, this is an inadequate basis for a finding of full moral agency. They acknowledge however that other commentators take French to be offering the foundations for a substantive account of moral agency (at p. 301). For this commentator, French is making the claim that the structures of decision-making typical of many companies generate a distinctively corporate intentionality, an intentionality as much part of the natural world as human intentionality. This claim is criticised below at pp. 535–537.
74. See J.W.N. Watkins, “Historical Explanation in the Social Sciences” (1957–1958) 8 Brilish Journal for the Philosophy of Science 104.
75. The Poverly of Hisloricism (London 1957).
76. D.C. Dennet in “Intentional Systems” in Brainstorms: Philosophical Essays on Mind and Psychology, (Cambridge Mass. 1978) and The Intentional Stance (Cambridge Mass. 1987) maintains that it is possible in principle to attribute intentional states to AI systems even while accepting that those systems lack consciousness or any other “mental” attributes.
77. By contrast, J.R. Searle in Intemionality: an Essay in the Philosophy of Mind (Cambridge 1983) claims that intentionality loses coherence as a category of experience if we divorce it from consciousness. He argues persuasively that to ascribe intentionality to a non-conscious system omits its representational character and suppresses the fact that an intentional state presents its object in a particular way to a centre of consciousness.
78. For an elaboration of this position see P. Arenella, “Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral Accountability” (1992) 39 U.C.L.A. L. Rev. 1511.
79. Of course, for human agents the lack of empathy, contrition etc. may be characterised as part of the very badness that is to be condemned but such reasoning has no application to impersonal entities. See, too, S. Wolf, “The Legal and Moral Responsibility of Organisations” in Pennock and Chapman (eds.) Criminal Justice (New York 1985) at pp. 276–279.
80. For a contrary view see Clarkson, Criminal Justice. note 48 at pp. 566–567. Inter alia, he rejects emotional capacity as a predicate for culpability because it would exclude negligence as a basis of criminal Uability. While it may be that findings of negligence may appropriately be made against psychopathic individuals, nonetheless negligence is exclusively a human failing. If it is to be said that something has have been at fault. For Clarkson companies can act negligently in their own right as they are “something more than simply the sum of their human components”, a position he takes for reasons similar to those put forward by French.
81. English law does not accept moral blamelessness or indeed moral credit as an answer to a criminal charge even for serious offences: Yip Chiu-cheung v. R.; [1995] 1 A.C. 111 (PC)
82. approved by the House of Lords in R. v. Kingston [1994] 2 A.C. 355.
83. All that is required is a match between the offence specification and the defendant's conduct and state of mind, subject to recognised defences. On that approach, it could be said that there is only a contingent relationship between mens rea and moral culpability and no legal objection to convicting subjects incapable of moral response. It is submitted that the stance taken on this matter by English law is unprincipled: G.R. Sullivan “Making Excuses” in A Simester and A.T.H. Smith, eds. Harm and Culpability (Oxford 1996) 131, at pp. 148–151. Be that as it may, the argument in the text is that personless companies should be excluded from the criminal law as a morally irresponsible class by way of analogy with infants and the insane. Yip Chiu-cheung concerned a person, not before the court, who had acted irreproachably but who was assumed to be guilty of a serious offence. Unlike an infant or personless company, however, he was a responsible person.
84. E. Gellner, “Holism versus Individualism” in M. Broadbeck, ed., Readings in the Philosophy of the Social Sciences (New York 1968) at p. 258.
85. [1995] 1 W.L.R. 1356.
86. 1 W.L.R., at p. 1364.
87. Johnson v. Youden [1950] 1 K.B. 544.
88. M. V. Herald of Free Enterprise: Report of Court No. 8074, Department of Transport. (The Sheen Report, H.M.S.O. 1987).
89. As is the position in U.S. Federal law: Standard Oil Company of Texas v. United States (1962) 307 F. 2D. 120.
90. P. Slovic and B. Fisckkoff, “How Safe is Safe Enough” in J. Dowie and P. Lefrere eds., Risk and Chance (Milton Keynes 1980) pp. 121–148.
91. Slovic and FisckkofT report a consistent exaggeration ex post facto of what could have been anticipated in foresight. Not all inquiries display this tendency. In his findings on the Hixton railway crossing disaster, E.B. Gibbens Q.C., declined “to criticise anyone unfavourably for having failed to foresee a danger when many intelligent minds and experienced and talented people have conscientiously considered the same problem before the danger manifested itself, yet failed to appreciate it”: Inquiry into the Disaster at Hixton railway crossing (Cmnd. 3706) para. 184.
92. Smith V. Baker and Sons (1891) A.C. 325
93. misons and Clyde Coal Company Limited v. English [1938] A.C. 57.
94. Vicarious liability is the term explicitly used in the case-law, e.g. Speed v. Thomas Swift and Co. Ltd [1943] K.B. 557
95. Mcdermid v. Nash Dredging and Reclamation Co. Ltd [1987] A.C. 906.