If corporate criminal liability is an area of interest, you may want to check out this paper titled “Corporate Criminal Liability: An Options Paper” recently released by the United Kingdom Law Commission. The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed.
In the paper, the Law Commission considers different options to the U.K. current corporate criminal liability standard (the so-called identification doctrine) including the Australian model, the Canadian model, and the U.S. model of respondeat superior.
Of note, the Law Commission rejects the U.S. respondeat superior standard for corporate criminal liability.
In terms of the origins of the Law Commission’s review, the paper states:
“In November 2020, we were asked by the Government to review the law on corporate criminal liability. In our terms of reference, we were asked to consider “the challenges faced by the criminal justice system under the current law relating to corporate criminal liability”. Our exploration of options for reform was agreed to avoid “disproportionate burdens upon business.” The remit of our substantive review included consideration of the suitability of the identification doctrine, the relationship between criminal and civil law on corporate liability, and other ways the criminal law can be used in relation to corporations.
We published our discussion paper considering the present law in these areas and possible approaches for reform in June 2021. In the discussion paper, we set out the law relating to several areas of corporate criminal liability, including the identification doctrine. This is the current model for attributing the acts of individuals to a corporation under the law of England and Wales. It deems that the actions and mental states of the individuals who constitute the “directing mind and will” of a company can be attributed to the company. This means those individuals who are senior enough to be deemed to direct the company’s mind and will can bind the company with their actions.
We explored several options for reform of the identification doctrine, including: (1) The doctrine of “respondeat superior”. This attributes the criminal acts of any employee to the company, where they were committed in the course of employment and with an intention to benefit the company. (2) The possibility under Australian Commonwealth law of attributing some fault elements – such as intent – to companies by way of their policies and procedures, on the basis that they are indicative of the culture of the corporation. A corporation can therefore be criminally liable for acts which were permitted or encouraged by its culture. (3) Canadian legislation allowing the acts and mental states of “senior managers” to be attributed to a company. Alongside this, we also considered the Australian model of attributing the acts of “high managerial agents” to the company for which those individuals work.
Separately, we assessed the existing “failure to prevent” offences, for bribery and the facilitation of tax evasion , and the possibilities for expanding this regime. These offences ascribe criminal liability to companies where they have failed to prevent employees or associates committing either bribery or the facilitation of tax evasion.
We also considered the liability of directors as individuals connected to corporate wrongdoing. This involved an assessment of the current formulation of “consent or connivance”, or “consent, connivance and neglect” provisions which can be found in a variety of statutes and which attribute liability to directors for their part in a company’s wrongdoing.
We asked questions about each of these options, the full list of which can be found in chapter 10 of the discussion paper. We received 45 responses to the consultation. We also had engagement from a number of additional stakeholders during the consultation period.
This options paper will assess the responses we received to each of these questions, as well as additional options which have come to our attention during consultation. We will assess a number of options for reform to each of the key areas we addressed in the discussion paper.”
Regarding respondeat superior, the doctrine of corporate criminal liability generally used in the U.S., the paper states in pertinent part:
“The doctrine of respondeat superior is the primary model of corporate criminal liability in the federal courts and most state courts in the US. It enables a company to be held criminally liable for the activities of its employees and agents, where they commit offences within the scope of their employment and their acts are, at least in part, motivated by an intent to benefit the corporation. As we noted in the discussion paper, the company does not need to have gained from the activity to be liable, provided the actions were intended to be favourable to the company’s interests, even if the primary motivation was the personal gain of the employee. The doctrine can be applied to employees of any level, provided they were acting broadly within their role.
The doctrine of respondeat superior differs from the primary attribution mechanism in England and Wales – the identification doctrine – in that the conduct and mental state attributed can be that of any employee or agent, not just the “directing mind and will” or senior leadership of the company.
[…]
The doctrine thus makes it easier successfully to prosecute large companies than under the more restrictive identification doctrine. It enables companies to be held to account where they have benefitted, or were intended to benefit, from wrongful conduct committed by people operating at more junior levels in a company’s hierarchy than other attribution models.
However, its breadth has also led to criticisms, including that the efforts of a company to discourage employees from committing criminal offences are effectively ignored. The argument goes that if the corporation is held liable for the criminal conduct of the employee, regardless of any steps they have taken to prevent it, then they will not be incentivised to take preventative measures. A counterargument to this is that if the preventative measures are successful in preventing the employee from committing the offence, they will prevent the company becoming liable – which provides an incentive to take preventative steps.
[…]
[W]e asked consultees the following [Question]:
In the United States, through the principle of respondeat superior, companies can generally be held criminally liable for any criminal activities of an employee, representative or agent acting in the scope of their employment or agency. Is there merit in adopting such a principle in the criminal law of England and Wales? If so, in what circumstances would it be appropriate to hold a company responsible for its employee’s conduct?
Of the consultees who responded to this question, a slim majority opposed the option of adopting the respondeat superior model in England and Wales.
One of the main reasons consultees gave for opposing this option was that it could only be applied if it had the safeguards that accompany it in the US. There was an indication from consultees that respondeat superior created an over-wide basis for liability, with subsequent reliance on prosecutorial discretion. The US system affords flexibility through DPAs, non-prosecution agreements and discretion not to prosecute. There is, for example, guidance in the form of memos on Federal Prosecutions which requires prosecutors to consider factors before commencing prosecution, for example, the “collateral consequences” to employees, investors and the economy.
By contrast, some consultees compared the CPS’s Full Code test, which requires prosecutors to assess whether a prosecution is in the public interest. Notably, this does not include consideration of the collateral consequences of a prosecution. Similarly, the CPS and the SFO can enter into DPAs with companies, but not agreements not to prosecute organisations altogether.
These safeguards discussed by consultees have also been the subject of some of the criticism aimed at respondeat superior in the US. It has been said that it gives too much power to prosecutors; it has resulted in non-statutory approaches to determining whether and when to pursue the corporation; and there have been concerns that in practice it is disproportionately used to target smaller businesses. This last criticism is also frequently aimed at the identification doctrine in England and Wales, suggesting that an expansion of the legal basis of corporate criminal liability will not necessarily lead to a broader range of companies being prosecuted and convicted.
The respondeat superior doctrine has received criticism that it is too wide, because it enables the actions of an employee at any level of seniority to bind the company. The criticism is that this is unfair in principle.
It has also been said that it is too narrow: in order to convict a company of a criminal offence, a prosecutor must prove that a single individual within the corporation had all the necessary knowledge to make out the offence. Some therefore argue that despite its perceived width, it still presents unforeseen barriers to successful prosecutions
As such, respondeat superior would not necessarily be a silver bullet despite the fact that it provides a wider basis for attributing liability than English law.
[…]
A number of consultees expressed concern that that respondeat superior would make England and Wales a less attractive place to do business. This was a theme among respondents who were generally opposed to proposals for broader models of liability, of which respondeat superior is one. The argument is that the more restrictive and burdensome corporate criminal laws become in this jurisdiction, the less attractive it will be to businesses and individuals.
An objection which was often raised alongside this argument was the compliance burden any new or altered rules would place on companies. This concern has been recognised since the inception of the project and has remained a factor for consideration throughout consultation. The concern was articulated in response to this question because it would constitute a radically different basis of liability, and therefore would entail compliance work for companies. For example, GC100 said
The application of the respondeat superior principle in the US and the possibility that a very junior employee’s behaviour can be attributed to the company creates a significant compliance burden to little benefit.
There was also opposition to this option on a principled basis. Alison Saunders DBE, responding for Linklaters, said
If one accepts the principle that serious criminal offences should not operate on a strict liability basis, it seems manifestly unfair to hold companies criminally liable for substantive offences where employees – especially junior ones – have engaged in economic crimes contrary to company policies or controls.
Similarly, the City of London Law Society’s Corporate Crime Committee said:
vicarious liability, as a concept, sits uncomfortably with other, prior, principles of the criminal law, which include the importance of mens rea for the most serious offending.
An important concern raised by consultees was … the disincentive to maintain legal and regulatory compliance if the acts of any employee could be attributed to the company. The perception that this model would create a compliance disincentive has developed because the doctrine operates as long as the employee or agent acted unlawfully and with the intention to benefit the company, without a defence which considers compliance efforts. The CPS shared the concern that this would be counterproductive:
Such a model would not draw a distinction between companies with comprehensive compliance programmes and those without, and therefore might not provide such a strong incentive to develop such programmes.
Baker McKenzie similarly said that any attribution model “must involve an assessment of the compliance measures in place to prevent commission of the relevant offence.” There was acknowledgement within some responses that the current framework for corporate criminal liability is beneficial because, at least in part, it incentivises better corporate compliance than would be achieved without the threat of a criminal conviction, or even a criminal prosecution.
[…]
There was also a concern that lowering the threshold undermines the value of a criminal prosecution, which was voiced by Linklaters: If the threshold for corporate liability were lowered to that extent, there is a risk that corporate prosecution would be viewed by some as a cost of doing business rather than as an incentive to operate a robust compliance model.
[…]
One of the main arguments given by those who thought there was merit in this option was the increased prosecutorial reach it would provide. The US rates of prosecution were cited as an example of the accountability which could be achieved if this model were used. Spotlight on Corruption were among those sharing this view, who said “there is little doubt that the United States’ vicarious liability regime has allowed one of the strongest records on corporate prosecutions across the board globally.” In particular, some consultees valued this model because it removes the senior management threshold requirement from the identification doctrine. This was seen as a way of overcoming the difficulty of applying the present doctrine to larger companies.
It is notable that some consultees who saw merit in the model also discussed the need for procedural safeguards and a defence, to ensure the wide basis does not result in unfairly high and frequent penalties for companies.
While the SFO did not support respondeat superior as their preferred option, they considered there was merit in adopting aspects of the doctrine in formulating a statutory rule of attribution. They proposed an option which would base corporate liability on the offending of “an officer, employee or agent, or person associated with it” where they intend “to obtain or retain business for the company; or to obtain or retain a business or financial advantage for the company.”
One comment about the Law Commission’s discussion about U.S. respondeat superior and how there are “safeguards” in the U.S. that “accompany” respondeat superior.
These supposed “safeguards” are not legal in nature, but non-binding guidance issued by the DOJ and/or non-reviewable discretionary acts of the DOJ.
In conclusion, the Law Commission rejected the idea that U.S. style respondeat superior was a suitable alternative to the U.K. current corporate criminal liability standards. The report states:
“The majority of consultation responses did not support this option, and this analysis has identified further problems with its potential implementation. However, a significant minority supported it.
One of the most common arguments in favour was that it will make corporate prosecutions easier to achieve. As has been discussed, however, we do not consider this a principled reason for which such a decision should be made: the question is whether a company should be criminally liable for the acts of its employees, and if so, in what circumstances.
We also recognise that respondeat superior has come under sustained criticism from academic commentators in the United States.
Adopting respondeat superior would represent a fundamental change in corporate criminal liability in England and Wales.
Other issues with this option – including the inappropriateness of the breadth of vicarious liability in civil law as a basis of culpability in criminal law, and practical concerns about prosecutorial safeguards – further support the majority’s conclusion that this option is unsuitable. As such, there is insufficient evidence to support the proposition that a company should be liable for the criminal acts of any of its employees. For these reasons, we do not consider the adoption of respondeat superior to be a suitable alternative to the identification doctrine.”
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