Corporate Criminal Liability: UNCAC Article 26 and Liability of Legal Persons, Exercises of Corporate Governence

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Corporate

Criminal

Liability

UNCAC

Article

Liability

of

legal

persons

Each

State

Party

shall

adopt

such

measures

as

may

be

necessary,

consistent

with

its

legal

principles,

to

establish

the

liability

of

legal

persons

for

participation

in

the

offences

established

in

accordance

with

this

Convention.

Subject

to

the

legal

principles

of

the

State

Party,

the

liability

of

legal

persons

may

be

criminal,

civil

or

administrative.

Such

liability

shall

be

without

prejudice

to

the

criminal

liability

of

the

natural

persons

who

have

committed

the

offences.

Each

State

Party

shall,

in

particular,

ensure

that

legal

persons

held

liable

in

accordance

with

this

article

are

subject

to

effective,

proportionate

and

dissuasive

criminal

or

non

‐criminal

sanctions,

including

monetary

sanctions.

Options

for

criminalising

corporations

1. Identification

doctrine

identification

vs

aggregation)

2. Vicarious

liability

respondeat superior

3. No

general

criminal

liability

for

corporations

but:

(i)

Specific

provisions

imposing

liability

on

corporations

(ii)

Specific

provisions

imposing

personal

criminal

liability

upon

managers

(iii)

General

(or

specific)

‘failure

to

prevent’

offences

Tesco

v

Nattrass

[1971]

UKHL

[1972]

AC

Trade

Descriptions

Act

S

“If

any

person

offering

to

supply

any

goods

gives,

by

whatever

means,

any

indication

likely

to

be

taken

as

an

indication

that

the

goods

are

being

offered

at

a

price

less

than

that

at

which

they

are

in

fact

being

offered

he

shall,

subject

to

the

provisions

of

this

Act,

be

guilty

of

an

offence.”

Aggregation

vs

personal

identification

Crime

has

mental

elements

a,

b,

c,

&c

No

individual

employee

of

company

had

all

of

b,

c

at

relevant

time,

But A

had

a,

B

b,

&c.

Enough?

(No

(UK)).

Another

variation

• corporate

killing

(1)An

organisation

to

which

this

section

applies

is

guilty

of

an

offence

if

the

way

in

which

its

activities

are

managed

or

organised— (a)causes

a

person's

death,

and

(b)amounts

to

a

gross

breach

of

a

relevant

duty

of

care

owed

by

the

organisation

to

the

deceased.

(2)The

organisations

to

which

this

section

applies

are—

(a)a

corporation; (b)a

department

or

other

body

listed

in

Schedule

(c)a

police

force;

(d)a

partnership,

or

a

trade

union

or

employers'

association,

that

is

an

employer.

(3)An

organisation

is

guilty

of

an

offence

under

this

section

only

if

the

way

in

which

its

activities

are

managed

or

organised

by

its

senior

management

is

a

substantial

element

in

the

breach

referred

to

in

subsection

(4)For

the

purposes

of

this

Act—

(a)“relevant

duty

of

care”

has

the

meaning

given

by

section

read

with

sections

to

(b)a

breach

of

a

duty

of

care

by

an

organisation

is

a

“gross”

breach

if

the

conduct

alleged

to

amount

to

a

breach

of

that

duty

falls

far

below

what

can

reasonably

be

expected

of

the

organisation

in

the

circumstances;

(c)“senior

management”,

in

relation

to

an

organisation,

means

the

persons

who

play

significant

roles

in—

(i)the

making

of

decisions

about

how

the

whole

or

a

substantial

part

of

its

activities

are

to

be

managed

or

organised,

or

(ii)the

actual

managing

or

organising

of

the

whole

or

a

substantial

part

of

those

activities.

Vicarious

liability

Respondeat superior

(US

federal

model)

Corporate

liability

and

personal

liability

(both

essentially

vicarious)

at

high

level

in

company.

3.i

and

3.ii

Specific

Offences

imposing

(vicarious)

liability

upon

managers

Eg (UK)

Trade

Descriptions

Act

1968

s

20

‘Where

an

offence

under

this

Act

which

has

been

committed

by

a

body

corporate

is

proved

to

have

been

committed

with

the

consent

and

connivance

of,

or

to

be

attributable

to

any

neglect

on

the

part

of,

any

director,

manager,

secretary

or

other

similar

officer

of

the

body

corporate,

or

any

person

who

was

purporting

to

act

in

any

such

capacity,

he

as

well

as

the

body

corporate

shall

be

guilty

of

that

offence

and

shall

be

liable

to

be

proceeded

against

and

punished

accordingly.’

(having

regard

to

ss 23

&

24.)

Bribery

Act

s.

Failure

of

commercial

organisations

to

prevent

bribery

A

relevant

commercial

organisation

(“C”)

is

guilty

of

an

offence

under

this

section

if

a

person

(“A”)

associated

with

C

bribes

another

person

intending—

(a)

to

obtain

or

retain

business

for

C,

or

(b)

to

obtain

or

retain

an

advantage

in

the

conduct

of

business

for

C.

But

it

is

a

defence

for

C

to

prove

that

C

had

in

place

adequate

procedures

designed

to

prevent

persons

associated

with

C

from

undertaking

such

conduct. (3)For

the

purposes

of

this

section,

A

bribes

another

person

if,

and

only

if,

A—

(a)

is,

or

would

be,

guilty

of

an

offence

under

section

or

(whether

or

not

A

has

been

prosecuted

for

such

an

offence),

or

(b)

would

be

guilty

of

such

an

offence

if

section

12(2)(c)

and

were

omitted.

Consequences?

Convictions?

Activity

to

put

in

place

adequate

procedures

DPAs