In 2019, I published my book “Responsabilidade Sancionadora da Pessoa Jurídica”¹, which is the upshot of the research I conducted during my Master of Laws, more specifically on Corporate Criminal and (Retributive) Regulatory Liability. To sum up more than 86.000 words, in a nutshell, my conclusions were the following.
First, attribution principles do not suffice to tackle modern criminality in that they do not work properly where wrongdoings are committed by and/or within medium to large companies, which exhibit complex, specialized, and devolved structures. In these settings, the company can easily escape liability by organizing itself in a way that no individual associated with it will gather all the requisite mens rea and actus reus conditions that need to be affixed to the company in order to hold it accountable. However, attribution principles lend themselves well to addressing offences perpetrated by or within small and simple-structured companies. Therefore, we should not relinquish them. We just need to avail of them where they prove to be an apposite tool.
Second, I propound that a novel model of corporate criminal liability should be devised and rolled out for complex structured companies which must be freed from the moorings of attribution rules. I didn’t label this model at the time and I didn’t intend to provide answers to all corporate criminal liability shortcomings. I focused on advancing the principal characteristics of such a model. Basically, if the prosecution succeeds in presenting evidence that an offence has been committed within a company’s context and/or in the course of its business and that it substantially contributed to the event, a presumption of liability will arise. For example, the presumption will arise if it’s proven that the company had someone pay a bribe in its favour. It is needless to pinpoint this person or to prove that the persons embodying the directing mind and will of the company were somehow cognisant of the improper payment. That done, the burden shifts to the defendant. Thus, it is for the corporate defendant to rebut this presumption, which can be done by the following four alternative avenues:
(1) by affording evidence that it had acted diligently, as the legal system expected, regarding the management of the risks that arise from its activities. Under this requirement, for instance, a company can dodge responsibility by adducing evidence that it had in place adequate procedures to prevent the offence, something tantamount to the defence under Section 7(2) UK Bribery Act 2010 (due diligence and adequate procedure defence).
(2) by demonstrating that the offence was unavoidable no matter how diligent the company was.
(3) related to the second criterion, by proving that the offence stems from a rogue employee, that acted at odds with corporate policies and/or instructions.
(4) by showing that there is not any causation link between the perpetration of the offence and the company, its policies, its structures, its procedures, etc. In order words, the company should be able to escape liability by proving that it did not contribute substantially to the wrongdoing.
I believe this framework shed some light on how we could grapple with some of the shortcomings stemming from attribution approaches, like the identification principle and respondeat superior doctrine.
¹ The book is available only in Portuguese
By Gustavo Costa Ferreira