Corporate personality and criminal liability
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[extract] The objectives of this article are to review the dominance in the common law world of derivative models of corporate criminal liability, to examine the deficiencies that have led to the current spate of reform proposals, to describe some of these proposals, and to address certain key questions about how to construct an organizational model of corporate criminal liability. The argument to be developed is broadly supportive of the proposals in the Model Criminal Code prepared by the Criminal Law Officers Committee of the Standing Committee of Attorneys-General of Australia. In particular, the idea that the fault elements for certain offenses may be found in criminogenic corporate cultures is endorsed. There are, however, some divergences of approach. It is argued here that an organizational model of liability can and should dispense with any requirement for conduct elements of offenses to be attributed from representatives who are acting within the scope of their employment or authority. In this respect, the Model Criminal Code may be too conservative. On the other hand, the proposals of the code may make too sharp a break from the traditional conceptual framework of the common law; in particular, the traditional distinctions between forms and levels of subjective fault. Clearly, concepts such as intention, knowledge, and recklessness need to be adapted for use with reference to organizations. Such terms, however, have collective meanings in ordinary language and, with appropriate refinements, can be given collective meanings in criminal law.
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