Professor Alexander Sarch - Why We Need The Collective Knowledge Doctrine

Overview

The Law Commission of England and Wales has recently proposed a number of welcome expansions to the way in which criminal liability is attributed to corporations. Most important is the proposal to expand the set of corporate actors who, under the English "identification doctrine," constitute the directing mind and will of the corporation and whose acts thus can be attributed to the corporation for purposes of assessing its criminal liability. However, the Law Commission expressly declined to go so far as endorsing the "collective knowledge doctrine," which allows the corporation's men's rea (culpable mental state), for criminal law purposes, to be constructed through aggregating the mental states of multiple individual actors within the corporation. There are scenarios involving the creation of unjustified hurdles to proper information sharing within the corporation, which contribute to causing harm to others, that would merit criminal liability, but these scenarios are not captured by the expanded approach to corporate criminal liability proposed by the Law Commission. Professor Sarch argues that a carefully tailored version of the Collective Knowledge Doctrine, which allows aggregation of mental states in limited highly culpable circumstances, would be an appropriate legal response to these worrisome scenarios that fall outside the Law Commission's recommended approach.