Corporate Liability - Research PDF

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Warning: TT: undefined function: 32 26 | P a g eCHAPTER 4 – AN ANALYSIS OF CORPORATE CRIMINAL LIABILITY INMAURITIUSOVERVIEWThroughout the first three chapters, it has been observed that concept of corporate criminal liability differs from one jurisdiction to the other. The main issue that will be ad...

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CHAPTER 4 – AN ANALYSIS OF CORPORATE CRIMINAL LIABILITY IN MAURITIUS OVERVIEW Throughout the first three chapters, it has been observed that concept of corporate criminal liability differs from one jurisdiction to the other. The main issue that will be addressed here is whether in Mauritius, there has been the existence of a proper framework dealing with corporate criminal liability, whether there are serious deficiencies and what developments are required to be brought to our system. In order to tackle this issue, it shall be apt to have a look at how our Mauritian Laws recognize a corporation and what kind of approach has been adopted so far to deal with them.

SECTION 2 OF COMPANIES ACT 2001 – DEFINITION OF COMPANY Section 2 of the Companies’ Act 2001 (Interpretations Section) defines a company as being one incorporated or registered under the Act and includes an existing company. It defines a corporation as being a body corporate, including a foreign company oy any other body corporate incorporated outside Mauritius or a partnership formed or incorporated or existing in Mauritius or elsewhere; but does not include a statutory corporation, a corporation sole, a registered co-operative society, a trade union or registered association. It can be noted in Mauritius there is no single piece of legislation that includes legal entities in its definition of “persons” or deals directly with the issue of corporate criminal liability. However, there are some laws and precedents that tend to resemble the basic principles which has been adopted by certain jurisdictions. These laws cater for the responsibility of corporations in cases where the latter caused serious bodily harm or death of a natural person.

SECTION 239 OF CRIMINAL CODE ACT Pursuant to Section 239 of the Criminal Code Act, any person who, by unskillfulness, imprudence, want of caution, negligence or non-observance of regulations, involuntarily commits homicide, or is the unwilling case of homicide shall be punished by imprisonment and by a fine not exceeding 150,000 rupees. In the case of CEB v Sate (2010 SCJ 75), CEB was charged for involuntary wounds and blows by negligence in breach of Section 239(1)(2) of the Criminal Code. At the trial stage, CEB was prosecuted under the said section of the law and sentenced to pay a fine of Rs6000. An appeal was made against this conviction on the ground that there was no evidence of negligence laid against the Accused. The Supreme Court highlighted that CEB is not a human person, but a corporate body. The judges commented the following: "Our Criminal Code is silent as regards the basis on which criminal liability whether human or corporate, may be imposed." Since our criminal Code does not contain any specific provisions dealing with corporate criminal liability, our Courts have no other option than to rely on the Interpretation and General Clauses Act as pointed out in the case Vigier de La Tour v. The State [2009 MR 306], to invoke the criminal liability of corporate bodies.

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SECTION 44 OF IGCA Section 44 of the Interpretation and General Clauses Act (IGCA) provides the following in relation to offences made by an agent or body corporate: ‘‘Where an offence is committed by a body corporate, every person who, at the time of the commission of the offence was concerned with the management of the body corporate or was purporting to act in that capacity, shall commit the like offence, unless he proves that the offences as committed without his knowledge or consent and that he took all reasonable steps to prevent the commission of the offence." This section of the law applies principles derived from the doctrine of identification inspired by common law as it was observed in the case of Dookhee v R [1992 MR 22] where the Court held that not only need there be appropriate averments in the information for a conviction of an individual to stand under Section 44 (1)(b) of the IGCA, but where the offence is in fact “le fait” of a corporate body, the prosecution has to show that the individual took part in the commission of the offence, had the necessary mens rea and was concerned in the management of the corporate body or was purporting to act as such. It was further emphasized in the case of CEB v The State [2010 SCJ 75], that “unless there is an identified individual whose negligence is involved, corporate liability is only possible where the legislature has enacted a law to that effect.” It can be here understood that it would not make sense to say that a company’s criminal liability arises once an individual is identified whose negligence is involved and this can lead us to believe that once an individual was identified whose negligence was involved, the question whether criminal liability devolved on the company would have to be decided by reference to the scope of its duty of care. Furthermore, this case summing up the position in French Law said the following: “The negligence must be attributable to identified person or persons capable of engaging the responsibility of the corporate body”. This CEB case was cited in the case of The Director of Public Prosecutions v. La Clinique Mauricienne (2014 SCJ 070). In this case, it was held that the information was fundamentally defective in that it failed, upon being fully particularized, to disclose corporate liability against the accused which was a body corporate. Allusion can be made to the case of Toorbuth v. The State & Anor (2012 SCJ 417) where the problematic was whether the body corporate was wrongly prosecuted in his own name in disregard of the provisions embodied in Section 44 of the Interpretation of the General Clauses Act and that since no evidence was adduced linking the accused, in any manner whatsoever with the averments in the information. The Court quoted Desvaux de Marigny v State [1999 SCJ 414] and highlighted that if the prosecution elects not to prosecute the corporate body but an individual who, at the time the offence was committed, was concerned in the management of the corporate body or who was purporting to act as one concerned in its management, then the charge must contain the appropriate averment to make it disclose an offence within the purview of Section 44 (1) (b) of the Interpretation and General Clauses Act which provides “every person who, at the time of the commission of the offence, was concerned in the management of the body corporate or was purporting to act in that capacity, shall also commit the like offence.” The Court therefore ruled that the appellant was, in the circumstances, simply charged with having personally committed the offence, and that he was wrongly so charged and was wrongly convicted since the prosecution did not establish that he personally did the act which constituted the offence. 27 | P a g e...