A recent development

Dear Editor,

As your readers will know, companies, even though they are fictitious legal persons, can be held to be criminally liable. Under common law, a corporation is liable for the actions of its employees whenever they act within the scope of their employment and at least in part to benefit the corporation.

The doctrine of attribution is usually invoked to ascertain the identity of individuals within a company whose mental element will be considered as that of the company for the purpose of finding criminal liability if they are not the directing mind or will of the company. Attributing criminal liability to a corporation involves looking at the constitutional allocation of power and responsibility under its articles of association, board resolutions, shareholders’ resolutions and other binding decisions of shareholders. The acts of any employee trusted with decision-making may be attributed to the guilty mind of the company.

The issue of corporate criminal responsibility has been hotly debated in India, where the high courts were not in favour of declaring corporations liable for criminal offences before Iridium Indian Telecom Ltd v Motorola Inc (2011). In this case the Supreme Court held that the if degree of control is so intense that a corporation may be said to think and act through its alter ego, i.e. a person or body of persons who are in control, mens rea of the alter ego is attributable to the corporation. The court further held that the doctrine of attribution was applicable not only for acts committed by the directors of the company, but also for acts committed by the company through its promoters, who are controlling the affairs of the company.