Criminal responsibility as a distinctive form of corporate regulation

Abstract from Australia Journal of Corporate Law Volume 35 Part 2

Throughout its life in the law, corporate criminal responsibility has attracted controversy. This article seeks to answer two foundational questions about this method of regulating corporate behaviour. The first relates to the capacity of a corporation to be guilty of a crime. It is argued that the historical bar on corporate criminal responsibility arose more from limitations upon the capacity conferred on a corporation by law than the law not recognising the corporation as an entity. Once those constraints were removed, corporate criminal responsibility came to depend upon whether the attribution method used appropriately captured the fault of the corporate entity. The second question addressed is why might criminalisation of conduct by a corporation be justified in a regulatory context heavily populated by civil penalty provisions? The answer to this second question lies in the unique expressive function of the criminal law.