The objectives of this thesis are twofold: firstly, demonstrate that the string of
contradictions stretching across substantive and procedural corporate criminal
law may be avoided if courts refer to an appropriate mechanism of imputation;
and secondly, show how such an appropriate mechanism of imputation may
be determined. This study adopts a three-step process to achieve these
objectives. The first step involves elaborating on the lack of coherence and
integrity in the imputation of acts and intents (or causal relationships) to
corporations caused by a disjunction of rules invoked by courts. The second
step involves establishing parameters by which mechanisms of imputation
may be evaluated. The third step involves evaluating a number of samples by
reference to the established parameters. Five mechanisms of imputation
applicable in the United Kingdom and in some jurisdictions that trace their
legal heritage to the United Kingdom are evaluated.
In the conclusion, it is submitted that although none of the mechanisms
evaluated may be deemed to be the appropriate mechanism, the aggregation
doctrine is the least inappropriate. This is because although it requires some
modification, it can best be aligned with propositions of how the criminal
liability of corporations may be established on a coherent and consistent
basis. The propositions that are put forward include the use of the doctrine of
innocent agency to establish a corporation’s guilt in instances where no guilty
agent may be identified; and the use of the principle of accessorial liability to
establish a corporation’s guilt in instances where a guilty agent may be
identified. The aggregation doctrine as modified in this study will enable the
prosecutor to establish a corporation’s guilt as advised above if measurable
values are given to the ‘innocent’ acts of agents and if emphasis is placed on
how the corporation reacted to the discursive dilemma that arose in the
decision-making process that preceded the performance of the relevant
activity. This will provide evidence to the effect that the aggregated act
represents the corporation’s subjective position