It is debated most of the times: whether or not it is feasible to hold responsible for crime a non-natural entity such as a corporate body which unlike a natural person, it is not capable of thinking for itself, or of creating any intention of its own. It is also contemplated that the very idea of fault and blameworthiness inherent in the concept of criminal capability embedded in this latin maxim “actus non facit reum, nisi mens sit rea” pressures personal responsibility.97 This is an element which an abstract entity such as a corporate body lacks. The corporate body has no physical except the mortar buildings and its does not think for itself. The actions that its takes or the acts that it undertakes, and the thinking that goes behind these acts is done for it by its directors or employees. There is a view that guilty servants of the corporation ought to be punished. The situation is otherwise complex when the guilt has to be fixed on someone. Within complex organisation it becomes very difficult to track down the individual offender. An official can very easily shift the whole blame or responsibility on another worker of lower rank. In case of any such event there are other branches of the law like the
96 United States v Philip Moris USA (1996) 566 F. 3d at 112. see also J G Stewart, „A Pragmatic Critique of Corporate Criminal Theory: Atrocity, Commerce and Accountability‟, A paper presented at the University of Toronto Workshop on Corporate Criminal Liability, 2012.
97 M S Wattad, „Natural Persons, Legal Entities, and Corporate Criminal Liability under the Rome Statute, (2016) 20,UCLA Journal of International Law and Foreign Affairs, 391.
31 law of contract, which recognize that a corporate body is very much capable of thinking and of exercising a will. This form of acceptance of liability is especially necessary where failure to perform specific duty imposed by the statute on a corporate body for example the duty to draw up and submit the tax returns or annual report submissions etc constitutes a crime.98
“Like defendants and other courts, the US court has also observed that “we are dubious of the legal soundness of the “collective intent” theory99 Corporate knowledge of certain facts [can be] accumulated from the knowledge of various individuals, but the proscribed intent (willfulness) depends on the wrongful intent of specific employees”.100 and for purposes of determining whether a statement made by the corporation was made by it, the researcher believes it is appropriate to look at the state of mind of the individual corporate official or officials who make or issue the statement (or order or approve it or its making or issuance, or who furnish information or language for inclusion therein, or the like rather than generally to the collective knowledge of all the corporation‟s officers and employees acquired in the course of their employment). There is no single universal rule as how to declare that a corporation should be held as a criminal defendant. The aggregation of mass capital it represents caters a bigger risk of harm if that power is used for criminal purposes. Such a rationale would for sure supp ort a decision to make the corporation not only civilly liable for its misconduct and misdeeds, but also step a little farther towards its criminal implications.
This rationale however reinforces the practices of holding a company for its criminal misconducts by mainly American federal laws.101The decision to criminalise cannot be made so casually keeping in view the role and position a corporation enjoys in our lives. Jurists like Henry Hart reminded us, “Criminal conduct is the conduct which, if duly shown to have
98 S Sadhana , „Corporate Crime and Criminal Liability of Corporate Entities, Resource Material Series No 76, 137th International Training Course Participants Papers (2010) p 5.
99 Saba v Compagnie Nationale Air France (1996) D C Cir., 78 F. 3d 664, 670.
100 Southland Securities v Inspire Insurance Solutions (2004) 5th Circuit, 365.F 3rd 353.
101 M E Tiga, „It Does the Crime but Not the Time: Corporate Criminal Liability in Federal Law‟, (1990) American Journal of Criminal Law Vol 17,211.
32 taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community”.102 At the same time it cannot be overlooked that holding a corporation criminally liable for offences otherwise acceptable in the business conduct belittles the criminal sanction in place and breeds contempt for them openly.
Over the years companies have learnt new tactic whereby they bring in a whole team of their advisors and the use of some of their finest lawyers and accountants to wriggle out of a situation where they have been charged of misconduct. Their whole agenda is to save their skins by accepting the fines and compensations due or to comply with any other regulatory measure so that they can steer away from the ambit of criminal law. They take every step possible through administrative or legislative regulations to keep the clutches of criminal law away. There are legislative histories of the countries where a strong lobbying has been used to keep the corporate illegal behavior and misconduct under the purview of the civil jurisdictions only.103
The juxtaposition that corporate liability creates between the civil and criminal law in many cases have led to the action of the company and its misconduct being judged by the courts by applying criminal law principles even though the punishment of the misconduct lie under the civil regulations. This brave initiation was only possible because of the intervention of the courts, which were brave enough to read between the legislations to stay clear from any confusion and punished the acts of corporations with severe punishments. The courts could have been saved from this confusion, had the legislation been drafted so as to pronounce clarity on the principles of corporate liability and the criminal implications of the misconduct of the employees or the owners of the company who deliberately commit wrongs.
The legislations have not yet clearly laid down the punishments where the companies are
102 Ibid, p 213.
103 L Snider, „The Regulatory Dance: Understanding Reform Processes in Corporate Crime‟, (1991) International Journal of the Sociology of Law, 209.
33 doing criminal wrongs with intent to gain profits and increase the margins of corporate gains.104 Most criminal statutes worldwide are applicable to any “person” who violates the legal provisions. Although ordinarily, the world “person” usually refers to a human being but the law gives it a much broader ambit and meaning.105 The Dictionary Act of United States, provided that in determining the meaning of any Act of Congress, unless the context indicates otherwise… the words „person‟ or „whoever‟ includes corporations, companies, associations, firms, partnerships, societies and joint stock companies, as well as individuals.
Many courts have used the above said definition to award meaning to the words person in the context of a criminal statute under the federal legislations as it provides enough space to incorporate the wrongs of a company. 106
The law is somewhat uncertain when a corporation‟s liability is fixed not upon the knowledge or the intent of a single employee but upon cumulative action or knowledge of several others who have acted upon in a collaborative thought. A collective knowledge instruction is entirely appropriate in the context of corporate criminal liability. The acts of a corporation are, after all simply the acts of all its employees operating within the scope of employment.