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Corporations and the Presumption of Innocence

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Abstract

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants.

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Notes

  1. R v Gill [1963] 2 All ER 688, at 691. See Roberts and Zuckerman (2010, 272ff), Duff (2007, 239–242) and Stuart (2010, 434–436).

  2. I avoid using the term “strict liability” in this essay for two reasons. Although in Canadian law, the term “strict liability” is reserved specifically for the form of liability found in reverse onus offences, many scholars have pointed out that the term is used elsewhere in numerous different senses: cf. Duff (2007, 229–236), Green (2005), Husak (1995) and Husak (2005). Use of the term as a general category is therefore unhelpful. Moreover, in the context of my argument here, the term is prejudicial. “Strict” in general means stringent, rigorous, severe, and so on. The kind of regime that imposes reverse onus burdens on natural persons is properly regarded as “strict” in that general sense, in that it subjects natural persons to norms of liability inconsistent with the person as a rational and autonomous agent. However, it does not follow that such a regime is still normatively “strict” in the sense of stringent, rigorous, severe and the like when applied to corporations. Given that corporations are not natural persons, any normatively invidious “strictness” has to be proved, and cannot be validly inferred simply from the application of a familiar doctrinal label.

  3. These reasons are drawn from Gobert and Punch (2003, 94–97), Dennis (2005), Ashworth (2009, 151–170) and Roberts and Zuckerman (2010, Chapter 6).

  4. See for example Lacey (1995, 2001a, b, 2007a, b). Cf. also Cane’s use of the expression “responsibility practices” (Cane 2001, 103ff; Cane 2002, 145ff).

  5. I explain the sense of formalism in Shiner (2010, 424–426); I suggest there that an approach to criminal law and its norms such as is found in Antony Duff’s work is “formalist” in this sense.

  6. Nagel (1979, Chapter 6): Nagel’s concern is with a different issue than mine, ruthlessness in public life: but his general framework is applicable to my issue; or so I shall argue. I also take corporations to be “public” in a sense appropriate to my project here, though I do not defend that assumption.

  7. Andrew Stumer finds regrettably many instances of this approach in the reasoning of UK courts as regards the Presumption of Innocence (Stumer 2010, 124ff.). The balancing approach is also prevalent in recent decisions of the Supreme Court of Canada on other criminal defence rights: R v Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, limiting the right to the assistance of counsel: R v Nedelcu, 2012 SCC 59, limiting the right against self-incrimination. It is supported as an approach to the Presumption of Innocence by David Hamer (Hamer 2007; Hamer 2011), criticising Stumer’s objections.

  8. Stumer (2010, 162), though he does call it “tentative”. See also the discussion in Duff, Farmer, Marshall, et al. (2007, 189–197), of German law’s concept of Ordnungswidrigkeit, a category of regulatory offence, and the authors’ exposure of its shortcomings.

  9. R v City of Sault Ste. Marie [1978] 2 SCR 1299, the case in which the Court first established the Canadian doctrine of strict liability.

  10. The initial promoter of the image seems to have been Glanville Williams: “There is a half-way house between mens rea and strict responsibility which has not yet been properly utilized…” (Williams 1961, 262, quoted by Dickson J at SSM 1313).

  11. Duff (2007, 63): his italics. I am indebted here to Duff’s discussion (2007, Chapter 3) on “Responsible for What?”, always supposing I have understood it aright.

  12. Honoré (2002, 14). Honoré does not observe rigorously the distinction between responsibility and liability, and many of the concerns that critics have had about his thesis turn on taking it to be a defence of “outcome liability”. I intend only outcome responsibility here.

  13. Consider also List and Pettit’s conditions for the responsibility of group agents: they face a normatively significant choice, involving the possibility of doing something good or bad, right or wrong; they have the understanding and access to evidence required for making normative judgments about the options; they have the control required for choosing between the options (List and Pettit 2011, 158). They go on to argue that corporations can be responsible as so defined (165–167).

  14. The argument of course makes empirical assumptions that reverse onus offences are instrumentally effective in the way specified, and this has been questioned: cf. for example Ashworth (2009, 163–164). I acknowledge that hostage to the facts. My concern is rather with what Ashworth (ibid., 161–163) calls the issue of fairness.

  15. Nicomachean Ethics V, 1129b27-30a13.

  16. Cf. Waldron (2003a), Gardner (2012, 238–269), Green (2010).

  17. List and Pettit (2001, 173). A similar view is defended by Dubbink and Smith (2010, 229–238): they speak of corporations as “administrators of duty”.

  18. Lacey (2004, 157). She is using the term “regulatory” here in a broad sense common in criminology and social science to refer to the whole spectrum of ways in which human behaviour is subject to modification: the criminal law is obviously one such, but not the only way.

  19. Cf. Wells (2001, 30–31).

  20. Pouncy (2011–12, 112): Gregory Gilchrist makes the same argument at greater length (Gilchrist 2012, 42–56).

  21. For more on “system hydraulics”, see Shiner (2009, 176–181).

  22. Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-08237, paras. 60–61 [internal references omitted].

  23. Dan-Cohen (1986, 36): his italics. List and Pettit talk about the “pachydermic” quality of corporations (2011, 176).

  24. The line of thought in this paragraph is a greatly compressed version of arguments made by List and Pettit (2011, 178–184).

  25. See Sullivan’s discussion of Hobbs the butcher (Sullivan 2005, 198–201). Duff in Answering is scrupulous in not referring to corporations, but to owners of factories or of stores as named individuals, with the implication that such folk are to be treated as natural persons.

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Acknowledgments

I am very grateful to those audiences, and especially to my commentators Neha Jain, François Tanguay-Renaud and David Silver: I learnt much from these sessions and these people, although not necessarily what they would like me to have learnt. I thank Antony Duff and Nicola Lacey for encouragement and advice. I thank Julia Hung for research assistance and Emma Shiner for helpful discussion. My research is supported by Social Sciences and Humanities Research Council of Canada Standard Research Grant #410-2009-2524 on “The Criminalization of Corporate Wrongdoing”. I thank the Council for their support.

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  1. Department of Philosophy, Unit 8, I.K. Barber School of Arts and Sciences, University of British Columbia Okanagan, Arts Building, 3333 University Way, Kelowna, BC, V1V 1V7, Canada

    Roger A. Shiner

  2. Department of Philosophy, Okanagan College, 1000 KLO Road, Kelowna, BC, V1Y 4X8, Canada

    Roger A. Shiner

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Shiner, R.A. Corporations and the Presumption of Innocence. Criminal Law, Philosophy 8, 485–503 (2014). https://doi.org/10.1007/s11572-013-9287-9

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