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The attribution of criminal responsibility to corporations for the offence of corporate manslaughter

Wells, Lydia (2005) The attribution of criminal responsibility to corporations for the offence of corporate manslaughter. Honours thesis, Murdoch University.

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The criminal law is based on principles of individual autonomy and mens rea. These principles are present to protect the rights of the accused and the authority of the criminal justice system. Because of the criminal law's focus on individual autonomy, substantial difficulties have emerged in applying the criminal law to contemporary corporations. In order to overcome these problems, the common law has developed three approaches which enable criminal responsibility to be attributed to a corporation. The most established method is known as identification theory, which looks to an individual who is the "directing mind and will" of the corporation and who can be found to have the mental element and involvement in the offence. Aggregation allows the conduct and mental states of more than one individual to be aggregated to make out the elements of an offence. Vicarious liability, although still possible in civil law, has been rejected by the courts in criminal matters. Identification has been affirmed by the courts as the most appropriate method of attribution of criminal liability. Nonetheless, it has inherent practical and conceptual difficulties. This is particularly so when addressing the complexities of management in many medium and large sized companies. The alternative approach to corporate criminal liability is regulation, which tends towards relying on strict liability. Two legislatures have recently looked to aggregation to meet the difficulties in the application of identification theory. However, this approach has inherent difficulties, most obviously in because it offends the basic principles of individualism and autonomy. This paper argues that identification theory is the only method of attribution which respects the fundamental principles on which criminal responsibility is based. Where attribution fails due to the limitations inherent in identification theory, regulatory law is the only acceptable mechanism that should be utilised in the offence of corporate manslaughter.

Item Type: Thesis (Honours)
Murdoch Affiliation(s): School of Law
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Supervisor(s): UNSPECIFIED
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