Corporate Criminal Liability (2) Flashcards
The company as a defendant for crimes requiring mens rea: UK law
• Vicarious liability does NOT apply; the company must be held directly liable.
- In UK law, the DOCTRINE OF IDENTIFICATION generally applies: for legal purposes, a person is recognised as being the company. But this needs AT LEAST one senior individual, to be seen as ‘the guiding mind’ of the company.
- This senior agent must himself be guilty: he has the required mens rea and was acting for the company.
- Although in the UK the principle of identification generally applies to crimes of mens rea, there are several major exceptions, for example:
- Corporate manslaughter: it is no longer necessary to find at least one individual with the mens rea; a general management failure at a senior level will suffice (aggregation test).
The company as a defendant for crimes requiring mens rea: USA law
In FEDERAL Law
Federal law:
• the DOCTRINE RESPONDEAT SUPERIOR
is applied as in tort law at the federal level. It holds corporations liable for any agent’s acts, regardless of rank.
• the DOCTRINE OF COLLECTIVE KNOWLEDGE (aggregation test).
The guilt of one individual is not necessary. The mens rea can be derived by adding together the failings of several employees.
The doctrine respondeat superior
It holds corporations liable for ANY agent’s acts, REGARDLESS of rank. It is used primarily at the federal level.
The collective knowledge doctrine
The guilt of one individual is NOT necessary. The mens rea can be derived by adding together the failings of several employees.
The company as a defendant for crimes requiring mens rea: USA law
In STATE Law
State law:
- Relevant here is whether the state uses the Model Penal Code (MPC) as the foundation of its criminal law.
- Unlike the way the doctrine of respondeat superior is used in federal law, the MPC requires that to hold the company accountable for felonies and misdemeanours, the crimes should have been carried out by SENIOR OFFICERS of the company; the ‘inner circle’.
- So senior agents only to hold employer liable for all crimes other than minor offences.
Employee as defendant
For crimes requiring mens rea, where carried out in the course of business:
Only the employer liable:
where the employer is primarily responsible for the circumstances. Action is only taken against an employee if that employee has shown WILFUL or RECKLESS DISREGARD, or for a deliberate act or omission ENDANGERING the health and safety of others.
Employee as defendant
For crimes requiring mens rea, where carried out in the course of business:
Only the employee liable:
if the employee is NOT acting as an agent of the company, but as a PRIVATE INDIVIDUAL for his own benefit, for example insider dealing.
Offences against the person
Homicide: Murder
Can a company be guilty of murder?
Traditionally, it has been held that a company could not be guilty of murder because:
• the crime could not be punished by a fine;
• it was a crime characteristic of natural persons (like rape or bigamy).
But in a number of jurisdictions a company can now be found guilty of manslaughter.
Offences against the person
Homicide: Manslaughter
Involuntary manslaughter:
has the actus reus, but NOT the mens rea of murder, as there was no intention to kill.
There are two types of involuntary manslaughter:
- Constructive manslaughter (Unlawful, dangerous act manslaughter)
- Gross negligence manslaughter
Constructive manslaughter
Criminal has set out to commit a lesser crime, but has in the process killed a person. For example, a person killed unintentionally during an arson (brandstichting) attack.
• Actus reus: an unlawful, dangerous act.
• Mens rea: the mens rea of the lesser offence (e.g. recklessness) but held liable for the death even where no specific mens rea for killing.
But note that in the USA this is classed as felony murder not manslaughter.
Gross negligence manslaughter
The performance of a lawful act carried out with gross negligence.
Gross negligence manslaughter
Must show there was:
- a DUTY OF CARE owed to the deceased
- BREACH of that duty CAUSED the death
- and the negligence was so GROSS as to justify criminal liability
Holding the company as well as individuals liable for manslaughter
Could a company be liable for gross negligence manslaughter?
- Despite deaths attributable to poor company practices, companies have usually been punished by fines only under health and safety regulations.
- Even where gross negligence, there was not always a criminal prosecution of the company for manslaughter.
• The UK DOCTRINE OF IDENTIFICATION is a doctrine used in a number of jurisdictions:
The problem was that the doctrine made it possible to hold small companies liable for manslaughter but difficult to hold large companies liable. This led to the Corporate Manslaughter Act 2007.
UK: The Corporate Manslaughter Act 2007
- An organisation can be convicted of corporate manslaughter where there has been GROSS NEGLIGENCE.
- The way in which the activities were managed or operated shows a BREACH OF A DUTY to take REASONABLE CARE for a person’s safety.
- It is NO longer necessary to show an individual, senior agent of the company was guilty. The doctrine of identification does NOT apply.
