Corporate Criminal Liability
Identification Doctrine: Limitations in Establishing Corporate Criminal Liability
The identification doctrine is the traditional method by which companies are held liable under the principles of the common law. According to this theory, the solution for the problem of attributing the unlawful acts to a corporation for offences that require intention was to merge the identified individual with the corporation. For the purpose of establishing corporate liability, a company may be responsible for the wrongful acts of living persons although it is an artificial entity which cannot act and think by itself. And by what Viscount Haldane noted: “A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”1 , the attribution then has depended on the “directing mind and will”.
Under normal circumstances, the directing mind of a company is found in the board of directors, the managing director and perhaps other superior officers rather than their subordinates.2 However, the junior employees may also participate in the directing mind if they are delegated by the board of directors some part of the functions of management such as act independently in particular circumstances.3 The physical act (actus reus) and mental state (mens rea) of the employees involved may be took into account when establish corporate liability.4
Many cases concerning various fields of daily life including those that trace back to the early time when corporations appeared demonstrate that a company could be prosecuted for a criminal offence.5 What may incur debates is whether the criminal offence could make a company criminally liable.
Two elements required in English law for a person as well as a company being
The identification doctrine is the traditional method by which companies are held liable under the principles of the common law. According to this theory, the solution for the problem of attributing the unlawful acts to a corporation for offences that require intention was to merge the identified individual with the corporation. For the purpose of establishing corporate liability, a company may be responsible for the wrongful acts of living persons although it is an artificial entity which cannot act and think by itself. And by what Viscount Haldane noted: “A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”1 , the attribution then has depended on the “directing mind and will”.
Under normal circumstances, the directing mind of a company is found in the board of directors, the managing director and perhaps other superior officers rather than their subordinates.2 However, the junior employees may also participate in the directing mind if they are delegated by the board of directors some part of the functions of management such as act independently in particular circumstances.3 The physical act (actus reus) and mental state (mens rea) of the employees involved may be took into account when establish corporate liability.4
Many cases concerning various fields of daily life including those that trace back to the early time when corporations appeared demonstrate that a company could be prosecuted for a criminal offence.5 What may incur debates is whether the criminal offence could make a company criminally liable.
Two elements required in English law for a person as well as a company being
Bibliography: Article Gerard Forlin, ’Directing minds: caught in a trap’ (2004) 154 NLJ 326 Books Stephen Griffin, David Southern and Peter Walton: Company Law Handbook (3rd edn), The Law Society, London, (2013) Electronic source http://www.duhaime.org/LegalDictionary/C/Company.aspx (accessed on 21/11/2014)