Corporate Criminal Liability (3)

Question 1

Non-fatal offences

Answer 1

• Assault
• Battery
• Grievous bodily harm (gbh)
• Actual bodily harm (abh)

Question 2

Offences against property

Answer 2

• Property offences that REQUIRE fraud, for example false accounting.
• Property offences that DO NOT REQUIRE fraud, for example theft.

Question 3

Examples of non-fraudulent offences

Answer 3

• Theft:
actus reus is appropriating property belonging to another;
mens rea is dishonesty and an intent to permanently deprive.

• Burglary:
actus reus requires unlawful entry,
mens rea is intent to steal or cause harm
.
• Blackmail:
actus reus is an unwarranted demand with menaces,
mens rea is intent to gain or cause loss to another.

• Criminal damage:
actus reus is destruction or damaging of property without lawful excuse,
mens rea is the intent to destroy or reckless as to whether property is destroyed.

Question 4

Fraudulent property offences

UK

Answer 4

UK Fraud Act 2006: there are 3 ways of committing fraud:

• by false representation
• by failing to disclose information
• by abuse of position

Question 5

Fraudulent property offences

USA

Answer 5

• Approach varies from state to state, depending on whether the state bases its criminal law on the MPC.
• Specific fraudulent offences may distinguish embezzlement from false pretences.
• Federal fraud statutes

Question 6

Specific corporate fraudulent offences. Note that…

Answer 6

that company officers can also be liable as individuals for the crimes of fraudulent trading and for insider dealing/trading.

Question 7

There are various specific corporate offences, although these may overlap with other general criminal law provisions. E.g. in the UK:

Answer 7

Under specific provisions, company officers can be held criminally liable as individuals, as well as the company, for FALSE ACCOUNTING and FALSE STATEMENTS concerning the company

Question 8

A person will commit the criminal offence of insider dealing if they have inside information and:

Answer 8

• That information is price-sensitive in relation to securities (e.g. buying or selling shares advantageously). The information is specific or precise and has NOT been made public;
• He/she deals in those shares, or encourages someone else to deal in those shares, or passes inside information to another person;

The punishment for the criminal offence of using such
confidential information is a fine or imprisonment.

Question 9

Insider dealing/trading. The offence applies to…

Answer 9

Both the primary insider and the one who receives and uses the privileged information from the primary insider.

Question 10

Bribery

It is a criminal offence either to:

Answer 10

Offer a bribe or receive a bribe

Question 11

Until the 1990s, it was the case in many market economies that bribing foreign officials was…

Answer 11

not seen as a criminal offence: it lubricated world trade.

For example, paying bribes abroad was legal in Germany until 1999; it was tax deductible!

Question 12

In some jurisdictions, like in the states of the USA and Europe, bribery is an offence either where

Answer 12

public officials are involved or whether it is so- called commercial bribery (bribes are offered and accepted by those in the private sector).

Question 13

Corporate liability for bribery

A company is liable where a senior agent of the company has offered a bribe or received one: which doctrine applies?

Answer 13

The doctrine of identification applies to this offence.

Question 14

Corporate liability for bribery

But in UK law, a company can also be liable simply for failing to…

Answer 14

FAILING TO PREVENT BRIBERY, where the bribery took place with the intention to obtain a business advantage. The doctrine of identification does not apply to failing to prevent bribery.

Question 15

Failing to prevent bribery is a strict liability offence.

There is only one DEFENCE that can be used:

Answer 15

The commercial organisation must be able to show that ADEQUATE PROCEDURES were in place to prevent bribery.

Question 16

Corporate liability for hacking

Computer hacking:

Answer 16

it is a criminal offence to have unauthorised access to computer systems; UNAUTHORISED ACCESS with the INTENTION to commit a serious crime; the unauthorised modification of computer material, or to obtain or disclose personal data.

Question 17

Corporate liability for hacking

Phone hacking:

Answer 17

A criminal offence,

for which a corporate body as well as the individual can be prosecuted.