1 A few examples follow. On 2 December 2012 an aeroplane crashed in the Republic of Congo's capital, Brazzaville, killing at least three; in March 2011, a cargo plane crashed in the economic capital, Pointe-Noire, killing at least 16 people; see: <http://www.bbc.co.uk/news/world-africa-20563655> (last accessed 2 December 2012). On 3 June 2012, an aeroplane operated by Nigerian based airline, Dana, crashed in a residential area in Lagos killing all passengers and crew, and others on the ground; see: <http://www.thisdaylive.com/articles/dana-air-plane-crashes-in-lagos/117206/> (last accessed 2 December 2012). On the same day, a Nigeria Cargo aeroplane crashed in Ghana killing ten people; see: <http://www.punchng.com/news/ten-killed-as-nigerian-cargo-plane-crashes-in-ghana/> (last accessed 2 December 2012). In June 2009 Air France flight AF447 crashed into the Atlantic Ocean killing 228 people; see: <http://www.telegraph.co.uk/news/worldnews/europe/france/8541703/3.5-minutes-of-terror-Air-France-crash-dropped-at-10000-feet-a-minute.html> (last accessed 2 December 2012). On 13 January 2012 the Italian cruise ship Costa Concordia partially sank after hitting a reef off the Italian coast and running aground at Isola del Giglio, Tuscany, requiring the evacuation of the 4,252 people on board. 30 people were reported dead. See: <http://en.wikipedia.org/wiki/Costa_Concordia_disaster> (last accessed 2 December 2012). See generally S DiGiacomo “Capsizing ships might become the norm” (19 January 2012) Earth Changes and Pole Shift, available at: <http://poleshift.ning.com/profiles/blogs/capsizing-ships-might-become?xg_source=activity> (last accessed 2 December 2012), where the writer stated: “In less than a week, I have noted 3 ships capsizing, 1 in Baja, MX, July 4th … another in Jayapura, Papua and the most recent in Russia in the Volga River.”

2 For instance, the United Nations Convention Against Corruption 2003 provides in art 26: “Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention.” See also art 2 of the Organisation for Economic Corporation and Development's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997.

3 Williams, GCriminal Law: The General Part (2nd ed, 1961, Stevens & Sons) at 856Google Scholar. Baron Thurlow is quoted to have said: “Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like”: Poynder, JLiterary Extracts (vol 1, 1844) at 2Google Scholar, available at: <http://dewey.petra.ac.id/quo_detail_114848.html> (last accessed 20 October 2011). See also Pearks, Gunston and Tee Ltd v Ward [1902] 2 KB 1 per Channel J at 11 to the effect that a corporate body cannot be guilty of a criminal offence which requires mens rea.

4 See the Case of Sutton's Hospital (1612) 10 Rep 32, 77 Eng Rep 960 per Sir Edward Coke at 973 (Eng Exch Ct). In Rolloswin Investments Ltd v Chromolit Portugal SARL [1970] 1 WLR 912 (HC) the court refused to invalidate a contract concluded by corporations on Sunday contrary to the Sunday Observance Act 1677 (UK) on the ground that a limited company is incapable of public worship or revering to a church or exercising itself in the duties of piety and true religion, either publicly or privately, on any day of the week.

5 “Actus non facit reum, nisi mens sit rea.”

6 See Pinto, A QC and Evans, MCorporate Criminal Liability (2nd ed, 2008, Sweet & Maxwell) at 39Google Scholar.

7 MacPherson, DL “Reforming the doctrine of attribution: A Canadian solution to British concerns” in Tully, S (ed) Research Handbook on Corporate Legal Responsibility (2005, Edward Elgar) 194 at 196Google Scholar. See R v ICR Haulage Co Ltd [1944] KB 551; [1944] 30 Cr App R 31 (ICR Haulage), where the English Court of Appeal, Criminal Division, per Stable J, held (at 40) that “whether … the criminal act of an agent, including his state of mind, intention, knowledge or belief is that of the company, … must depend on the nature of the charge, the relative position of the officer or agent and the other relevant facts and circumstances of the case.” But in Tesco Supermarkets v Nattress [1972] AC 153 at 173, Lord Reid suggested that the nature of the charge could not be a relevant consideration and that “whether his offence was serious or venial his act was the act of the company” so long as the guilty man was identifiable with the company. This confirmed the position adopted by Lord Denning in HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 CA at 172.

8 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd (1915) AC 705 (Lennard's) where his lordship said (at 713): “A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing mind and will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the corporation. That person may be under the direction of the shareholders in general meeting; that person may be the board of directors itself, or it may be, and in some companies it is so, that that person has an authority co-ordinate with the board of directors given to him under the articles of association, and is appointed by the general meeting of the company, and can only be removed by the general meeting of the company.”

9 See Director of Public Prosecutions v Kent and Sussex Contractors Ltd [1944] KB 146 (Kent and Sussex Contractors) at 156 where Macnaghten J at the Divisional Court, in holding the company criminally liable stated: “It is true that a corporation can only have knowledge and form an intention through its human agents, but circumstances may be such that the knowledge and intention of the agent must be imputed to the body corporate.” Viscount Caldecote LCJ at 156 adopted the approach, but without expressly referring to Lennard's, that “although the directors or general managers of a company are its agents, they are something more. A company is incapable of acting or speaking, or even thinking except in so far as its officers have acted, spoken or thought.” See also ICR Haulage (above at note 7) where the Court of Criminal Appeal upheld the conviction of a company for the offence of conspiracy to defraud. In Moore v I Bresler Ltd [1944] 2 All ER 515 the company was convicted of making false tax returns. Canadian courts had evolved this practice before their English counterparts; see R v Fane Robinson Ltd [1941] 3 DLR 409 where the company was similarly found guilty of conspiracy to defraud.

10 See New York Central & Hudson River Railroad v United States 212 US 481 (1909) and Egan v United States 137 F 2d 369 (8th cir), cert denied, 320 US 788 (1943). However, this position was not lightly attained as the intervening period between 1915 and 1940 saw at least one case, R v Cory Bros & Co Ltd [1927] 1 KB 810, in which a company was charged with manslaughter for erecting an electric fence which electrocuted a miner. Finlay J, at the assizes, quashed the indictment and held (at 817) that he was “bound by the authorities which show quite clearly that as the law stands an indictment will not lie against a corporation either for a felony or for a misdemeanour of the nature set out in the second count of this indictment”. This decision was criticized by CRN Winn “The criminal responsibility of corporations” (1929) 3 Cambridge Law Journal 398 at 406Google Scholar, where he argued that the “intra vires [within their powers] decisions and commands of the board of directors, are factually, and should be legally, the decisions of the corporation and not of the individuals qua [as] individuals; for a corporation is an entity in which individuals are united within a bond of association which modifies their mental process … a corporation should be answerable criminally as well as civilly for the acts of its primary representatives.”

11 [1957] 1 QB 159 at 172 CA. This statement has been described as an “indulgence in some medieval anthropomorphism”: French, D, Mayson, S and Ryan, CMayson, French & Ryan on Company Law (26th ed, 2009, Oxford University Press Inc) at 634Google Scholar. This is an image which Lord Hoffman in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 509 believed to be rather a distraction from the purpose for which Viscount Haldane LC in Lennard's at 713 used the notion of directing mind and will to apply the attribution rule derived from sec 502 of the Merchant Shipping Act of 1894 to the particular defendant in the case.

12 Above at note 7. See also R v P&O European Ferries (1991) 93 Cr App R 72 at 84 where Turner J in approving the earlier position of the English courts said that “where a corporation, through the controlling mind of its agents, does an act which fulfills the prerequisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter”.

13 See Lord Reid's statement at 170: “A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his act is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.” (Emphasis added)

14 See secs 11(2) and 24(1) of the UK Trade Descriptions Act 1968.

15 [1944] KB 515 at 516 (KBD).

16 Ibid. See also the concurring judgment of Humphrey J at 517.

17 See MacPherson “Reforming the doctrine of attribution”, above at note 7 at 197.

18 [2008] EWCA Civ 644, [2008] 3 WLR 1146. See also Belmont Finance Corporation Ltd v William Furniture Ltd [1979] Ch 250. The court held that knowledge by the claimant company's directors that they were part of a conspiracy to harm the company could not be attributed to the claimant company so as to make it one of the conspirators and debar it from suing the others. Attorney General's Reference (No 2 of 1983) [1984] 78 Cr App R 131 (CA) held that a company is not fixed with the knowledge of the directing mind where it is the victim of the offence.

19 [1987] UKPC 19.

20 Id at 22. See also R v Philippuo (1989) 89 Cr App R 290 where the Court of Appeal held that the drawing of money from the company's account by the sole director and shareholder was dishonest and with the intention permanently to deprive the company of its money which amounts to an appropriation.

21 Above at note 11.

22 Id at 507.

23 Id at 511. The approach of the Privy Council is described as new only in the sense that it did not approve of the rigid identification principle applied by the House of Lords in Tesco, rather it reverted to earlier cases such as ICR Haulage (above at note 7) and Kent & Sussex Contractors (above at note 9) and expressly approved the Divisional Court decision in Moore (above at note 15). It is noteworthy that Lord Hoffman specifically referred (at 512) to the decision in that case as follows: “Likewise in a case in which a company was required to make a return for Revenue purposes and the statute made it an offence to make a false return with intent to deceive, the Divisional Court held that the mens rea of the servant authorised to discharge the duty to make the return should be attributable to the company … Each is an attribution for a particular purpose, tailored as it always must be to the terms and policies of the substantive rule.”

24 [1996] 1 WLR 156 at 165 (CA).

25 Subsequent English court decisions have followed this line of cases. See, for instance, Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 (HL) where the acts of an area manager and plant manager were attributed to the company. The court further held that it is no defence that the employer had expressly prohibited employees from engaging in such conduct because “the Act [Restrictive Trade Practices Act 1976 now repealed by Competition Act 1998] is not concerned with what the employer says but with what the employee does in entering into business transactions in the course of his employment.” In Bank of India v Morris [2005] EWCA Civ 693, [2005] 2 BCLC 328 the Court of Appeal restated the existing trend when considering whether the conduct of a person who is not a director could be attributed to the company under sec 213 of the UK Insolvency Act of 1986 which creates an offence against fraudulent trading. The court stated (at paras 129–30) that “the wording of, and policy behind, s 213 indicate that it would be inappropriate, in the case of a company, to limit attribution for its purposes to the board, or those specifically authorised by a resolution of the board. To limit it in such a way would be to ignore the reality, and risk emasculating the effect of the provision … it therefore must to some extent depend on the facts of each particular case whether an agent's knowledge should be attributed to the company … it must typically depend on factors such as these. The agent's importance and seniority in the hierarchy of the company: the more senior he is, the easier it is to attribute. His significance and freedom to act in the context of the particular transaction: the more it is ‘his’ transaction, and the more he is effectively left to get on with it by the board, the easier it is to attribute.”

26 [1994] 2 All ER 685 at 706 (CA).

27 Id at 699.

28 [2000] 2 Cr App R 207 (CA).

29 Id at 217.

30 See Pinto QC and Evans Corporate Criminal Liability, above at note 6 at 63. In any event that decision will no longer stand in view of the recent enactment in the UK of the Corporate Manslaughter and Corporate Homicide Act 2007 which is discussed later in this article.

31 (1985) 1 SCR 662, 19 DLR 4th 314 (Ont SCC).

32 Id at 693. Bruce Welling believes however that this statement could have had some force at the time it was made, but not so much in modern times. The advancement in technology, he contends, has considerably shrunk the world. Centralized control is now more effective, because email allows managers at corporate headquarters to apprehend and respond to daily problems encountered by supervisors at remote work sites. See Welling, BCorporate Law in Canada: The Governing Principles (3rd ed, 2006, Scribblers Publishing) at 169Google Scholar. This may not be correct in all respects; although the importance of technology in the conduct of corporate affairs in the modern age cannot be underestimated, that in no way undermines the increasing decentralization of authority, especially among multinationals, for effective and efficient corporate governance. His lordship's statement remains as relevant today as it was when it was made in 1985.

33 Estey J had in the earlier civil case of Canadian Laboratory Supplies Ltd v Engelhard Industries of Canada Ltd 1979 Can LII 44 (SCC), [1979] 2 SCR 787 at 817 (Ont SCC) alluded to the nature of the distribution of functions in the corporate organization as follows: “Obviously some employees must be placed in charge of buying, another of selling, another of financing, and another in charge of accounting, and so on, and each must have the authority necessary to deal responsibly with his counterpart in other trading and governmental organizations.”

34 (1993) 1 SCR 497, 101 DLR 4th 188 (SCC).

35 Id at 212–14.

36 Captain Kelch had described himself in evidence as “a funkie” whereas Captain Lloyd was “the operational manger [and] a vice president”: id at 213.

37 This was exactly what Justice Estey meant when he said in Canadian Dredge, above at note 31, 662 at 683: “The requirement is better stated when it is said that the act in question must be done by the directing force of the company when carrying out his assigned function in the corporation.”

38 Ibid.

39 Pinto QC and Evans Corporate Criminal Liability, above at note 6 at 55.

40 Clarkson, CMV “Kicking corporate bodies and damning their souls” (1996) 59 Modern Law Review 557CrossRefGoogle Scholar.

41 Gobert, J “Corporate criminal liability: Four models of fault” (1994) 14 Legal Studies 393CrossRefGoogle Scholar.

42 [1985] 1 SCR 662 at 683 (SCC). This decision relied on the earlier English court decision in R v McDonnell [1966] 1 All ER 193 (KB) where Justice Nield held (at 202) that “a company and a director cannot be convicted of a conspiracy when the only human being who is said to have broken the law or intended to do so is the director.”

43 Fisse, B “Reconstructing corporate criminal law: Deterrence, retribution, fault and sanctions” (1983) 56 South California Law Review 1141Google Scholar.

44 Wells, CCorporations and Criminal Responsibility (2nd ed, 2001, Oxford University Press) at 134CrossRefGoogle Scholar.

45 G Ferguson “Corruption and corporate criminal liability”, available at: <http://www.icclr.law.ubc.ca/publications/reports/fergusong.pdf> (last accessed 6 December 2012).

46 Aiolfi, G and Pieth, M “International aspects of corporate liability and corruption” in Tully (ed) Research Handbook, above at note 7, 395 at 395Google Scholar. The aggregation approach was rejected by the Australian court in Macquarie Bank Ltd v Sixty-fourth Throne Pty Ltd [1998] 3 VR 133.

47 This approach was adopted by the US court in United States v Bank of England 821 F 2d 844 (1st Cir 1987) where the trial court rejected the bank's argument that there was no single employee of the company with sufficient mens rea to impute to the company. The court explained that the bank's knowledge is the totality of what all the employees know within the scope of their employment.

48 Wells, C “Corporate criminal responsibility” in Tully (ed) Research Handbook, above at note 7, 147 at 153Google Scholar.

49 (1991) 93 Cr App R 72 (CA).

50 (1989) Cr App R 10 (CA).

51 Pemberton, S “Moral indifference and corporate manslaughter: Compromising safety in the name of profit” in Tully (ed) Research Handbook, above at note 7, 177 at 188Google Scholar. Compare R v Kite and Others [1994] NLJ 1714, a case involving a canoe accident that claimed the lives of four teenagers. The company was successfully prosecuted for manslaughter. Slapper observed that the prosecution was successful because: the company was small, so it was relatively easy to find the “controlling minds”; and the risks to which the teenagers were exposed were serious and obvious, not in any way technical or esoteric. There was also a letter from a former employee which made the managing director aware of the risks. See Slapper, G “A corporate killing” (1994) 144 New Law Journal 1735Google Scholar.

52 See M Goode “Corporate criminal liability”, available at: <http://www.aic.gov.au/publications/proceedings/26/goode.ashx> (last accessed 2 February 2010).

53 See “Corporate criminal responsibility: American standards of corporate criminal responsibility”, available at: <http://law.jrank.org/pages/744/htm> (last accessed 28 December 2009). Some cases decided by the English courts have adopted a similar approach. See National Rivers Authority v Alfred McAlpine Homes East Ltd [1994] 4 All ER 286 (CA) which held that, if a company's employees, acting within the course and scope of their employment, caused polluting matters to enter controlled waters in contravention of sec 85 of the Water Resources Act 1991, the company would be guilty of an offence regardless of the status of the employees. Compare Vane v Yiannopoullos [1965] AC 486, where the House of Lords held that, unless otherwise specified by statute, there could be no vicarious liability for an offence with a mental element unless the employer's proprietary or managerial functions had been delegated to the employee who committed the offence. This latter decision reemphasizes the need for the employee to be acting as the “directing mind” of the company, except as otherwise provided by statute as in the former case. This has always been the position of the law in England as evidenced by the works of some writers in this field such as: Sibson, C “Criminal liability of directors” in Mortimore, S QC (ed) Company Directors Duties, Liabilities and Remedies (2009, Oxford University Press) 1021Google Scholar who stated (at 1025) that, although vicarious liability may exist in relation to some summary offences of a regulatory or quasi-regulatory nature, there is no general doctrine of vicarious liability in the criminal law; Davies, PL, Worthington, S and Micheler, EGower and Davies Principles of Modern Company Law (8th ed, 2008, Sweet & Maxwell) at 185Google Scholar where the writers stated that vicarious liability is shunned by the common law in criminal cases and as such the courts had to work out a different set of starting points for the imposition of criminal liability on companies. In R v Higgins (1730) 2 Ld Ray 1574; (1730) 2 Str 883, 885; 92 ER 518, Lord Raymond CJ was explicit on the English position when he stated: “It is a point not to be disputed but that in a criminal case the principal is not answerable for the act of his deputy, as he is in civil cases; they must each answer for their own acts, and stand and fall by their own behaviour.” So also was the decision of the House of Lords in Tesco where Lord Morris emphasized (at 179) that “criminal liability only results from personal fault. We do not punish people in criminal courts for the misdeeds of others. The principle of respondeat superior is applicable in our civil courts but not generally in our criminal courts.”

54 212 US 481 (1909).

55 Egan v United States 137 F 2d 369 (8th cir), cert denied, 320 US 788 (1943) at 379 per Thomas J. See Gruner, RSCorporate Criminal Liability and Prevention (2005, ALM Properties Inc, Law Journal Press) at 47–48Google Scholar for further discussion of this case. See also United States v Basic Construction Co 771 F 2d 570 (1983) (5th CCA) for a recent judicial restatement of this principle.

56 Burchell, J and Milton, JPrinciples of Criminal Law (3rd ed, 2005, Juta & Co Ltd) at 563Google Scholar.

57 (2000–04) LAC 895.

58 Id at 915.

59 Id at 920.

60 The same court had earlier, based on similar facts, found another company guilty of bribery, suggesting a consistent pattern. See Acres International Ltd v The Crown (2000–04) LAC 677. See also the case of City Centre Maseru Travel Agency (Pty) Ltd v The Crown C of A (Cri) 13/2007 delivered on 17 October 2008, where the Court of Appeal absolved the company of fraud based on the finding that the company “in the person of its managing director, believed that the government knew all along that the amount reflected on the invoice was more than the cost of the ticket” and as such there was no intention by the company to defraud the government. This decision is similar to the English Court of Appeal decision in R v Rozeik [1996] 1 WLR 156, above at note 24.

61 See PH Bucy “Corporate criminal responsibility: American standards of corporate criminal responsibility”, available at <http://law.jrank.org/pages/744/htm> (last accessed 23 March 2010).

62 Ferguson “Corruption and corporate criminal liability”, above at note 45.

63 Criminal law, observed Wells, is pre-eminently concerned with standards of behaviour enforced, not through compensation, but through a system of state punishment negotiated via standards of fault such as intention, knowledge and subjective recklessness. Its application to corporations thus attracts more controversy than do civil liabilities. See C Wells “Corporate criminal responsibility”, above at note 48 at 148.

64 Id at 151.

65 The committee had observed that “the common law, largely because of the emergence of large corporations in modern times, does not make appropriate provision for the criminal liability of corporations. Further the change required in the law to accommodate this development is of such dimensions that legislative action, rather than reliance on evolution of common law, is required”: Gibbs Review of Commonwealth General Law Interim Report: Principles of Criminal Responsibility and Other Matters (1990, AGPS) at 305. See more particularly M Goode “Corporate criminal liability”, available at: <http://www.aic.gov.au/publications/proceedings/26/goode.ashx> (last accessed 2 February 2010). The inability of the common law justifiably to address the complexities of large corporations, an issue which is inherent in the notion of devolution of powers, was similarly identified by Fisse and Braithwaite as a reason for dumping the identification theory as applied in Tesco; see Fisse, B and Braithwaite, JCorporations, Crime and Accountability (1993, Cambridge University Press) at 47Google Scholar.

66 Burchell and Milton described the relevant provisions in that statute as the most ambitious so far. See Burchell and Milton Principles of Criminal Law, above at note 56 at 564. Part 2.5 of the act contains comprehensive provisions on corporate criminal liability and is so entitled.

67 See sec 12.3(6).

68 French, P “Types of collectivities and blame” (1995) 56 The Personalist 166Google Scholar.

69 Field, S and Jorg, N “Corporate liability and manslaughter: Should we be going Dutch?” (1991) Criminal Law Review 156Google Scholar.

70 To borrow the word of Goode who referred to the provisions as the “full corporatisation of the idea of corporate fault via the notion of corporate culture”: Goode “Corporate criminal liability”, above at note 65 at 10.

71 Sec 12.3(6) of the code defines “high managerial agent” as “an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy”.

72 Corporate manslaughter is the unintentional killing of an individual by a company through unlawful act or by gross negligence. See French, Mayson and Ryan Mayson, French & Ryan on Company Law, above at note 11 at 637.

73 See sec 8(3) of the Corporate Manslaughter and Corporate Homicide Act 2007 which provides: “The jury may also (a) consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices [corporate culture] within the organisation that were likely to have encouraged any such failure.”

74 Above at note 49.

75 See also Attorney General's Reference (No 2 of 1999) [2000] 2 Cr App R 207 (CA) where it was held that a company could be found guilty of manslaughter only if it could be identified with an individual who is guilty of the crime. This reaffirmed the earlier decision of the court in R v HM Coroner for East Kent ex parte Spooner (1989) 88 Cr App R 10 where Bingham LJ held that “the mens rea and actus reus of manslaughter should be established not against those who acted for or in the name of the company but against those who were to be identified as the embodiment of the company itself.”

76 The substantial part of this act came into force on 6 April 2008. See the Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No 1) Order 2008. See also French, Mayson and Ryan Mayson, French & Ryan on Company Law, above at note 11 at 638. This legislation has been applauded as a landmark in law in that, for the first time, companies and organizations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of duty of care. See “Corporate manslaughter”, available at: <http://www.hse.gov.uk/corpmanslaughter/index.htm> (last accessed 11 February 2010).

77 A “gross breach” of duty is defined in sec 1(4)(b) as conduct falling “far below what can reasonably be expected of the [company] in the circumstances”. This is an objective standard as it is determined by what is attainable in companies engaged in similar operations.

78 Emphasis added. “Senior management” is defined in sec 1(4)(c) as persons who play significant roles in “(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities.” Thus, company's “directing minds” are no longer restricted to those involved in decision making as held by the House of Lords in Tesco, but extend to those who play significant roles in the implementation of such decisions.

79 See Pinto QC and Evans Corporate Criminal Liability, above at note 6 at chap 13 for a detailed discussion of the provisions of this innovative legislation.

80 This was revealed in the report of an investigation conducted under sec 55 of the UK Merchant Shipping Act 1970 where Sheen J observed: “There appears to have been a lack of thought about the way in which the Herald ought to have been organised for the Dover / Zeebrugge run. All concerned in management, from the members of the Board of Directors down to the junior superintendants, were guilty of fault, in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.” See Pinto QC and Evans, id at 219.

81 “Senior officer” is defined as “a representative who plays an important role in the establishment of the organisation's policies or is responsible for the management of an important aspect of the organisation's activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” See sec 22.2 of the Canadian Criminal Code, RSC 1985 (as amended by Bill C-45 of 2003).

82 See MacPherson “Reforming the doctrine of attribution”, above at note 7 at 202.

83 Sec 22.1 of the Canadian Criminal Code, RSC 1985, c C-46 which provides: “In respect of an offence that requires the prosecution to prove negligence, an organisation is a party to the offence if: (a) Acting within the scope of their authority; (i) One of its representatives is a party to the offence, or (ii) Two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) The senior officer who is responsible for the aspect of the organisation's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected of a representative of the organisation from being a party to the offence.”

84 See MacPherson “Reforming the doctrine of attribution”, above at note 7 at 204.

85 See S Davies “Managing corporate culture” (1984), cited in Bucy, PH “Corporate ethos: A standard for imposing corporate criminal liability” (1991) 75 Minnesota Law Review 1095 at 1123Google Scholar.

86 See Canadian Dredge, above at note 31, 662 at 713–14.

87 Which Bruce Welling stated as being to make it easier to prosecute large corporations where the direction of corporate action is decentralized. See Welling Corporate Law in Canada, above at note 32 at 166.

88 See MacPherson “Reforming the doctrine of attribution”, above note 7 at 207.

89 The MPC was last updated in 1981.

90 See “Model penal code: Further readings”, available at: <http://law.jrank.org/pages/8624/Model-Penal-Code.html#ixzz0ioWNHufq> (last accessed 22 March 2010).

91 See Hefendehl, R “Corporate criminal liability: Model Penal Code section 2.07 and the development in western legal systems” (2000) 4/1 Buffalo Criminal Law Review 283 at 290–92Google Scholar, available at: <http://www.jstor.org/stable/pdfplus/10.1525/nclr.2000.4.1.283.pdf?acceptTC=true> (last accessed 2 December 2012).

92 MPC, sec 2.07(1)(c).

93 Id, sec 2.07(4)(c).

94 See PH Bucy “Corporate criminal responsibility: American standards of corporate criminal liability”, available at: <http://law.jrank.org/pages/744/htm> (last accessed 22 March 2010).

95 See MPC, sec 2.07(5).

96 See for instance United States v Hilton Corporation 467 F 2d 1000 (9th cir 1972) where the corporation was convicted of antitrust violations despite the testimony of the assistant manager of the corporation that they specifically told the purchasing agent not to threaten suppliers.

97 Hefendehl “Corporate criminal liability”, above at note 91.

98 No 51, 1977, similar to Lesotho Criminal Procedure and Evidence Act No 9, 1981 (LCPEA).

99 See Ex parte Minister van Justisie: In re S v Suid-Afrikaans Uitsaaikorporasie 1992 (4) SA 804 (A) at 807.

100 Emphasis added. LCPEA, sec 338(1) embodies similar provisions.

101 This is strange for, even under the civil law, a master is not vicariously liable for the wrongful conduct of his servant who acted outside the scope of his employment. See Heuston, RFV and Buckley, RASalmond and Heuston on the Law of Torts (21st ed, 1996, Sweet & Maxwell) at 443Google Scholar, referred to in Okpaluba, C and Osode, PCGovernment Liability: South Africa and the Commonwealth (2010, Juta & Co) at 294Google Scholar.

102 See Burchell and Milton Principles of Criminal Law, above at note 56 at 566.

103 138 F 3d 961 (DC 1998).

104 See ABSA Bank Ltd v Bond Equipment (Pretoria) Pty Ltd (2001) 22 ILJ 95 (SCA). See more particularly Okpaluba and Osode Government Liability, above at note 101 at 357–59 where the issue of vicarious liability was discussed in some depth.

105 Ironically, the act defines the less controversial term “director” but fails to define “servant”. See CPA, sec 332(10) and LCPEA, sec 338(11) where “director” is defined as: “any person who controls or governs the corporate body or who is a member of a body or group of persons which controls or governs that corporate body or, where there is no such body or group, who is a member of that corporate body”. This shows that “director” is not the same as “servant” in the context in which both terms are used in this provision. Servant could refer to the employees of the company generally, some of whom may not necessarily be directors of the company. The author has argued elsewhere that a director could be regarded as a servant of the company while exercising certain responsibilities; see Nwafor, AO “Is a director a servant of the company? A Nigerian company law perspective” (2007) 3/3 The Corporate Governance Law Review 351Google Scholar.

106 CPA, sec 332(11). The Lesotho version is in sec 338(10).

107 Above at note 8.

108 Above at note 7.

109 In United States v Sun-Diamond Growers of California, above at note 103 at 971, the US Supreme Court stated that the policy justification for holding corporations criminally liable for acts of their employees is “to increase incentives for corporations to monitor and prevent illegal employee conduct”.

110 Above at note 11.