Corporate Criminal Liability

The Common Law: Vicarious Liability and the Development of Primary Liability UNLESS THE TERMS OF THE STATUTE INVOLVED SPECIFICALLY PROVIDE TO the contrary, the criminal responsibility of a company or corporation, as distinct from its officers or employees, falls to be determined by common law principles. Under original common law, a company could not be convicted for any criminal offence. The common criminal law also took the position that, in general, there could be no vicarious criminal responsibility; that is, a person could not be deemed to be guilty of a criminal offence committed by another. But in the nineteenth century, general statutory exceptions to the vicarious responsibility principle led also to statutory exceptions to the principle against the criminal responsibility of corporations, and to common law exceptions where the corporation had failed to carry out a statutory duty creating a common law nuisance. For a variety of reasons, not least confusion about the principles governing primary corporate criminal liability, the principles of the common criminal law have never truly shaken free from these foundations A principal hurdle to the imposition of primary, as opposed to vicarious, corporate criminal liability at common law was that common law offences insisted on proof of criminal fault, and the courts could not see a clear way of saying that, for example, a company, as opposed to any human being associated with the company, "intended" something, or "knew" something (Kellow [1912] VLR 162). That was not a problem with vicarious liability, because it did not rest on fault (Great Britain Law Commission 1972). The hurdle was overcome by the opinion of Viscount Haldane in Lennard's Carrying Co Ltd v. Asiatic Petroleum Co Ltd [1915] AC 705. There he invented a theory of primary corporate criminal liability for offences requiring fault which has become known as the "identification theory" or the "alter ego" theory of responsibility. This is what he said: (at 713)