Corporate criminal liability in the United Kingdom: determining the appropriate mechanism of imputation.
Nana, Constantine Ntsanyu
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The objectives of this thesis are twofold: firstly, demonstrate that the string of contradictions stretching across substantive and procedural corporate criminal law may be avoided if courts refer to an appropriate mechanism of imputation; and secondly, show how such an appropriate mechanism of imputation may be determined. This study adopts a three-step process to achieve these objectives. The first step involves elaborating on the lack of coherence and integrity in the imputation of acts and intents (or causal relationships) to corporations caused by a disjunction of rules invoked by courts. The second step involves establishing parameters by which mechanisms of imputation may be evaluated. The third step involves evaluating a number of samples by reference to the established parameters. Five mechanisms of imputation applicable in the United Kingdom and in some jurisdictions that trace their legal heritage to the United Kingdom are evaluated. In the conclusion, it is submitted that although none of the mechanisms evaluated may be deemed to be the appropriate mechanism, the aggregation doctrine is the least inappropriate. This is because although it requires some modification, it can best be aligned with propositions of how the criminal liability of corporations may be established on a coherent and consistent basis. The propositions that are put forward include the use of the doctrine of innocent agency to establish a corporation’s guilt in instances where no guilty agent may be identified; and the use of the principle of accessorial liability to establish a corporation’s guilt in instances where a guilty agent may be identified. The aggregation doctrine as modified in this study will enable the prosecutor to establish a corporation’s guilt as advised above if measurable values are given to the ‘innocent’ acts of agents and if emphasis is placed on how the corporation reacted to the discursive dilemma that arose in the decision-making process that preceded the performance of the relevant activity. This will provide evidence to the effect that the aggregated act represents the corporation’s subjective position.