Mark Hornman

In diens recente overzichtsarrest blijft de Hoge Raad in weerwil van tegengeluiden vanuit de lagere rechtspraak en de literatuur vasthouden aan het opzetvereiste voor feitelijk leidinggeven. Daarmee wordt het deelnemingskarakter van deze aansprakelijkheidsfiguur nogmaals bevestigd. Die bevestiging is geheel terecht, maar het (waarschijnlijk onbedoelde neven)gevolg van de huidige benadering van dat opzetvereiste is wel dat de ondermaats presterende leidinggevende beter af is dan zijn normconform of bovenmaats presterende collega. Dit specifieke punt vergt nog redressering door de Hoge Raad en zou verholpen kunnen worden door een meer zorgplichtgerichte benadering van voorwaardelijk opzet.

Since the acceptance of corporate criminal liability criminal law doctrine has been looking for an adequate way to fully and properly incorporate the legal person into the established framework theories on actus reus and mens rea. Anthropomorphic approaches have proven to be inadequate and undesirable. A model of corporate culpability is favored by many, but few have been able to contemplate such a model. After all, such a model should not only live up to its aspirations on an abstract theoretical level by providing a sound foundation for liability, but should also work for legal practitioners.
Research in the field of economic crimes has a long history in the Willem Pompe Institute and in true Pompean tradition this article aims to enrich the current state of corporate criminal liability with new insights from a non-legal, but still normative discipline: business ethics. After all, questions of responsibility and accountability are not merely legal in nature.
This contribution addresses the question whether Bratman’s theory of shared intentions – intentions which can be traced back to a ‘web of attitudes of the individual participants’ – could provide the desired solid foundation mentioned above. Does this theory allow for the construction of corporate mens rea without resulting to overly complex routes of attribution or farfetched, and as a consequence thereof feeble, lines of legal reasoning? Thus, an overarching concept or framework could be created which incorporates both of the traditional models for establishing corporate mens rea, and, hopefully, helps criminal law theory to move beyond the current false discrepancy between attributed and ‘own’ culpability.

Published in F. de Jong et al (eds.), Overarching views of delinquency and deviancy; Rethinking the legacy of the Utrecht School, The Hague: Eleven International Publishing, 2015, p. 287-309.

Are the current criteria for the crimi­nal liability of leading officials of corporations under Dutch criminal law still adequate in view of the present-day knowledge on the functioning of modern organisations? Modern corporations no longer reflect the classical image of the Weberian pyramid that lies at the heart of the scheme of hierarchical accountability: the fully rational organisation that is headed by an all-knowing and all-powerful leadership. It is however only this ideal type where the application of the criteria for imposing liability doesn’t encounter problems. Neither detecting – i.e. gathering and procuring information – nor effecting – i.e. bringing about change within an organisation – proves problematic. With Weber’s ideal type of the rational bureaucracy being no longer accurate, a new theoretical frame of reference is required. Criminological research has shown that organisational deviance can only be understood if insights from organisational theory are taken into account. So, only by opening the ‘black box’ that is the modern organisation can we understand how corporations operate, make the true constellations of power and involvement come to light, and pass a valid judgement on the individual criminal responsibility of managers. By using updated and refined versions of the configurations that were originally developed by Mintzberg, more, and more accurate models of organisations can be provided. By identifying several leading positions within these archetypes, the possibilities and restrictions that these managerial positions face when it comes to detecting criminal behaviour within their organisation and effecting measures against such behaviour, can be analysed. In order to be criminally liable, a manager must have a certain level of de facto control over the alleged criminal behaviour, at least somewhat knowledge thereof, and there needs to be a violation of the duty of care. Many cases even require dolus eventualis. Based upon the aforementioned analysis, an assessment can be made of the extent in which these possibilities and restrictions affect the ability of each of these managerial positions to control the behaviour of others. Secondly, it can be determined how this influences the nature of knowledge that can be expected of them when it comes to criminal behaviour of subordinates. And finally, it gives an indication of the kind of measures that can be expected from managers to either stop or prevent such acts. In sum, it creates the opportunity to assess the adequacy of the criteria for liability. Overall, these criteria are well suited. The insights from organizational theory can even be used to further develop and fine-tune the duty of care. This would enhance the quality of the legal framework and ensure that neither ignorance nor incompetence is bliss. As such, a certain revision is required. Currently, doing more than is strictly required can backfire on management. It increases the chance of knowledge, which in turn triggers the duty of care and creates the risk of liability. Furthermore, the legislator should consider the separate penalisation of violating the institutional duty of care by introducing an obligation to ensure a sufficient organisation structure, organisation culture, and information infrastructure. [PhD Thesis in Dutch, with a summary in English]