Failure to Prevent and Attributions of Organisational Liability

A/Prof Penny Crofts1

1University Technology Sydney, ,

There is a large body of academic literature articulating the difficulties of prosecuting corporate malfeasance. There is recognition that the 19th century common law approach of the identification principle does not adequately respond to contemporary challenges of organisational culpability. The larger an organisation, the more capable it is of causing systemic harms, and yet the less likely it is to be held criminally liable. A relatively recent response in the UK has been to develop an indirect form of omissions liability by criminalising the failure to prevent. This paper draws on case studies from the Australian Banking Royal Commission and current Aged Care Royal Commission to analyse how and why the failure to prevent comes about in large organisations. This then forms the basis for an account of how and why the failure to prevent can be sufficiently blameworthy to justify the imposition of criminal sanctions, i.e., a normative account of culpability.


Biography:

Associate Professor Crofts is an international expert on criminal law and models of culpability. Her research is cross-disciplinary, drawing upon a range of historical, philosophical, empirical and literary materials to enrich her analysis of the law. Penny is currently researching criminal legal models of organisational culpability through the prism of philosophies of wickedness and horror.

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