Running Head:CRIMINAL AND CIVIL SANCTIONS OBJECTIVES

Criminal and Civil Sanctions Objectives



Criminal and Civil Sanctions Objectives

Introduction

The usual approach to the criminal law and the establishment of criminal liability often is achieved by looking at natural persons and their criminal ability in respect of actus reus and mens rea. However, it has been suggested that this model of analysis does not fit the nature of the corporation very well. This view is based on the assumption that corporations do not act intentionally or recklessly and is connected with the conceptual difficulties caused by the phenomenon of corporate harms (Wells, 1988). Part of the reason they are not perceived as crimes is that However, this formalistic position gradually shifted and in 1944, three landmark cases imposed direct liability on corporations, ie liability was imposed because the company was deemed to have acted as opposed to employees having acted on it behalf. These cases are taken to have surmounted the mens rea hurdle since they established that the mens rea of certain employees of the company could be considered as that of the company itself. In reaching these decisions, the courts were inspired by the alter ego doctrine of the law of torts by which acts of the most senior officers of the corporation were identified as being acts of the corporation itself.

Discussion

The validity of this criticism became acutely clear after the capsizing off Zeebrugge of the Herald of Free Enterprise. In the aftermath, the coroner's jury returned verdicts of unlawful death. Yet, despite such a finding, no criminal charges were preferred against either individuals or the company. Consequently, during the inquest into the drownings an application was made to the Divisional Court to consider whether the coroner was right to rule out the possibility of a verdict of unlawful death caused by the company. The coroner's decision was subsequently upheld on the ground that as there was no obligation to allocate responsibilities within the company, it was impossible for the prosecution to prove which controlling officer was responsible for carrying out certain duties or preventing certain acts (Van den Haag, 1978).

In addition to the weakness established above, the principles advanced by English law in establishing corporate criminal liability make it impossible to aggregate the actus reus or the mens rea of two or more controlling officers in order to establish corporate liability. Bingham LJ in the first reported case in the UK where the doctrine of aggregation was advanced rejected the aggregation argument in a sentence or two without analysing its demerits. There was to be one actor and one actor only who had the requisite knowledge before a company could be held criminally responsible. However, this stance is unsatisfactory and does not address the intricacies of the corporate form as it operates in present day circumstances. It is not right that a company which has caused death or injury because its gross negligence spread throughout the organisation should escape liability merely because no one single senior employee was guilty in his or ...