The Types of Criminal Responsibility

Criminal responsibility strictu sensu is personal. The law of crime puts culpability on blame worthiness of an act. Thus, it is not all criminal conduct that attracts culpability, blame worthiness is a very essential element.

N.B There is an exception in the instance of vizarious liability where B is liable for A’s conduct. The issue of mens rea is not applicable even if it is present with the actor of the crime.

Corporate criminal responsibility

Generally a company is a legal person. It can do virtually all work a natural person can do – it can be sued and can sue, acquire property, capable of succession etc. However, a corporate person has its limitations. The old position at common law is that a corporation cannot commit an offence that requires mens rea, it cannot stand in the dock to face prosecution and moreso it cannot be imprisoned.

According to Berkeley in R. V Anglo Nigerian Tin Mine Ltd;

There was no one who could be brought before the court, and if necessary, placed in the dock.

However, with the proliferation of modern companies from 1944, the common law scope of corporate liability was considerably extended by virtue of the decision in R. V ICR College and also Moore V. Brestler. The decisions in these cases pointed out that the old order in previous cases was considerably extended.

The Nigerian position is that a corporation can be made criminally liable by the express wordings of a particular state. However the criminal code makes no special provision concerning the criminal liability of corporations (as distinct from the individual liability of the members composing the corporation). For example, the Nigerian position can be seen in Section 74(5) of the factories act which makes companies, cooperative society, or other body of persons criminality liable.

Under the criminal code, a corporation can be made criminally liable. This is because every offence begins with “any person” and the meaning of person as defined in section 3 of the interpretation act includes any company or association or body of persons, corporate or incorporate. Part 51 of the criminal procedure act further provides that persons, corporate persons can be charged with an offence.

Justification for ascribing criminal liability to companies

Supporters of corporate liability argue that there is a need for it to effect the curtailment of careless company procedures, to effect improvement in company regulations and safety procedures, deterrence from future harmful conduct through the stigma attached to adverse publicity and fines. Deprivation of unjust enrichment and the promulgation of greater control by shareholders and ultimately bear the financial penalties imposed. There are two ways in which a limited liability company can be held liable for criminal acts.

1. Vicarious liability; or
2. Through the doctrine of identification

Vicarious liability

Companies are being held vicariously liable for crimes committed by its employees. This applies in instances of statutory crimes or strict liability were the court has been able to give an extended meaning to words such as sell, supply, use etc. In Tesco Stores Ltd. V. Brent London Bureau Council, the defendant company was charged with supplying a video with an ‘18’ classification certificate to a youth of 14 years in violation of the video recordings act 1984 section 11(1).

The statute provided a defence in Section 11(1) (6)to a defendant who neither knew nor had reasonable cause to believe that the purchaser had not attained the designation age. Tesco argued that none of the directive minds of the company had the requisite knowledge, but the divisional court dismissed Tesco’s appeal, holding that it was unrealistic to expect those in control of a large company to have knowledge of info of every video purchaser and that of expect that would defeat the objective of the statute.

Consequently, it held that the knowledge of the employees should be properly attributed to the company. This therefore meant that the offence was one of vicarious liability. See also R. V British Steel Plc.

N.B The doctrine of vicarious liability has been criticized on the ground that it is too wide in attributing wrong doings of all and any employees to the company and it is too narrow in leaving no opportunity to explore the company.

The doctrine of identification (alter ego principle/doctrine)

The court recognizes certain senior individuals as being the company itself and the acts of these individuals when acting in the company’s business are treated as the acts of the company. In DPP V. Kent Sussex, a company was held criminally responsible under defense intent to deceive by producing falsified documents of information signed by one of the officers of the company who was known to the court to be the “brain” and therefore liable.

It has been said that certain members of the company can be regarded as its brains and the others as mere hands. The brains therefore can be the directors, company secretaries and other senior members who are in a position of control and exercise sufficient executive power. This metaphoric delimeation between brains and hands was provided by Lord Denning in the corn case popularly called Bolton v. Grahan. He said

A company may in many ways be likened to a human body. It has a brain and a nerve centre which controls what it does. It also has hands which holds the tools and acts in accordance with directives from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will of the company and cannot also be said to control what it does the state of main of these managers is the state of mind of the company and it is treated as such by the law.

However, in Tesco Supermarket Ltd V. Mattres, the branch manager of the company was held not to be the brain of the company and as such the company was the personally liable.

N.B In John Henshaw Quarries Ltd V. Harrey a weight bridge operator was held not to be the brain of the company.

Also, in Magna Plant Ltd V. Mitchell, a depot engineer was held not to be the brain of the company. However, in Merrdian Globacom Management Ltd V. Securities Commission, Lord Hoffman adopted their attribution test when he held that two senior management managers employed by the company were brains of the company.

Corporate criminal liability has been extended to manslaughter cases by virtue of corporate Homicide Act 2007 in England. Examples of instances in which corporations have been convicted include the cases of sedition – R.V Zik Press Ltd, R.V African Press Ltd and R. V Service Press Ltd where the company was convicted for contempt of court. Also in the case of Mardila Karaberise V. IGP it was stated that the company will be convicted for stealing.

N.B Where the court holds that a particular person is not a “brain” in the delineration, that person although he cannot activate the company’s vilarious liability for his actions, he himself will be held personally liable for his actions.

Vicarious liability for individuals

In civil actions, the employer will be vicariously liable for the liability of its servants. This enables the victim of the tort to the tort feasor’s employer who is more likely to pay should liability be proved. However, this principle does not apply to criminal wrongs because liability is extended to the perpetrators of the criminal act. The rule that criminal liability is personal and not vexatious was on age long principle which was obliterated in the case of Huggens 1730 strange 83 where there was an attempt to hold the head of the prison was valorously liable for the negligent criminal act of the jailer.

Raymond CJ stated that:

It is a point not to be disputed that in criminal cases, the principal is not answerable for the acts of his deputy as he is in civil matters. They must each answer for them own acts and stand or fall by their own behavior.

However, some basic exceptions were laid down which includes public nuisance and criminal libel.

N.B The rationale for vicarious liability is basically to enable the court to punish the employers so that the law will keep him on his toes and ensure that it carriers out regular safety chicks. For example, on his fleet of Lorries.

This also applies to license cases where the holders of the license is held vicariously liable for any offence committed with the license. Apart from license cases which are expressing stated by the law that they attract liability to the license holder, there are also instances of implied vicarious liability in cases of driver/owner of detective lorries or trucks. The books have also predicated the adoption of vicarious liability option on the need to entrench public policy especially when it has to do with interest informed criminal wrongs. Sometimes the language of the legislature is clear, it is express but when it is not clear, it is implied. And when it is implied, the courts have constructed it based on the principle of delegation and agency. On the delegation principle, the mens rea of employee B is imputed to Employer A where there is a delegation of duty.

Thus as Lord Coleridge C.J affirmed in the old English case of Somerset V. Hart that;

It is permissible that a man may put another in his position so as to represent him for the purpose of knowledge.

On that proposition you can see the case of Allen V. Whitehead in that case, the owner of a café was charged with knowingly by permitting prostitutes to meet together and remain in a place where refreshments were sold. The café was run by a manager who knew about the prostitutes; the accused had no knowledge of them. The court held that the café owner had delegated his statutory duty, and therefore was vicariously liable, so that his manager’s actus reus and mens rea could be assigned to him.

However, in Ogwuagu V. Police, a newspaper proprietor who has earlier instructed the man he led to publish not to publish a seditious articule was acquitted of sedition, when the man who published it in disobedience to the proprietors instructions.

Strict liability

These are instances in which the offences are touched by the legislature in a way that the ingredients are devoid of mens rea elements. This can be distinguished from vicarious liability where the mental guilt of the real perpetrator is required to be proved. Strict liability otherwise called absolute offences are purely created by the statutes except from public nuisance, outraging public decency, criminal libel, an some parts of contempt of court. Hence, the courts are suppose and required to discover the intention of the parliament through the wordings of the statutes.

Thus in R. V Efana, Webber J. held that even though both accused believed in all innocence that the second accused was entitled to take certain cases out of customs they were guilty of offences in respect of taking those cases away because the relevant sections of the customs ordinance were absolutely prohibitive. Examples of strict liability offences as provided by Section 35 of the Road Traffic Offences of England which made it a crime to drive or attempt to drive a motor vehicle on a road or other public places or having consumed alcohol to such an extent that the amount of alcohol which was passed into the blood stream at the time the specimen of breath is taken exceeds the prescribed limit which is at present 35 mg per 100ml of breath.

The breathalyzer legislation has created a strict liability offence the intoxiometer be used to test the alcohol level at the roadside. If it is positive, the offender is liable for disqualification for at least one year.

In Nigeria, under the Custom Act, there are offences of strict liability. In Dosunmu V. Comptroller of Customs and Exercise Duties, Hubbard J pointed out that the customs ordinance (now act) contained three classes of offences i.e offences of1. Absolute prohibition to which guilty knowledge is irrelevant, 2. Offences in which prosecution must prove mens rea 3. Thirdly, an intermediate class of offences involving mens rea but where the ones of proof is shifted onto the defendant to disprove guilty knowledge.

See the case of Noble V. Adam Yahaya where strict liability was applied to for feature under the customs act. The courts construe the intent of the legislators as regards to strict liability offences through the wordings of the statutes. For example; where the words like “permitting” or “allowing are used (i.e. it is couched in this way). It is an offence to allow or permit a person to do an act. Maybe to drive a vehicle with defective tyres, and this is usually in road traffic offences. Also, the use of the words cause (i.e. causing something to happen. For example, the offence is committed as a result of the effect of an act. These are called “result crimes” e.g murder).

In the case of Worthwell Ltd v. Yorkshire Water Authority it was held that the defendant caused a poisonous matter to enter the stream. The use of the word “possession” is also relevant there. If the statute provides that it is an offence for a person to be in possession of something, whether firearms, drugs, prohibitive substances etc, it will be consumed strictly.

N.B This would not extend to instances or situations where the substance is stopped into your apartment without your notice. See Wamer V. Metropolitan Police Commission.

It was also held in Harrison 1996 CLR 200 that strict liability applies to offences under Section 19 of the firearms act of 1968, the offence of having a loaded shotgun in a public place. All that is required to be proved is knowledge of the fact of possession and not of the nature and quality of the thing possessed. Other instances of strict liability application includes sale of goods, and drinks, laws covering the environment and public safety for example; section 3 of the Dangerous Drugs act 1991 provides that it is a strict liability offence that owners of dogs that are dangerously out of control in public places.

Also, in the case of sedition, the wordings of the statute has been construed to intend a strict liability offence. In the Gold Coast case of Adjli V. R, a newspaper editor was found guilty of publishing a seditious article and the appellant who is the chairman of the paper, was also convicted through he neither consented to nor knew about the publication. The WACA rejected his appeal and held him vicariously and strictly liable. The court held that the definition of sedition contains no such qualifying words as knowingly or negligently. It was implied that it was the policy in this case to make sedition a strict liability offence since it was an offence against the safety of the state.

Strict liability has also been construed by the courts where the policy in the offences affect public welfare. In Lynchin Iyke V. R, it was stated that where the subject matter of the statute has to do with the regulation of public welfare of a particular community i.e statute regulating the sale of food, drinks and milk, it has been inferred that the legislature that such activities should be carried out under conditions of strict liability.

However, the Nigerian position is not strictly similar in the medium of mental guilt required. See section 243(1) of the Criminal Code which deals with sale of things that are unfit for food or drinks. They are of mental requirements of guilt section 244 of the criminal code deeds with diseased meat e.g meat infected by tapeworm. The provisions require a mental element.

Criticisms of strict liability

Strict liability offences have been criticized on the following grounds:

1. It is unjust to punish conduct without fault simply for the protection of society.
2. It cannot be expected that people who have done their best to do more than that.
3. Vicarious liability is a specie of strict liability.
4. Vicarious liability may be revoked or criminal instances under corporate criminal liability.