Corporate Criminal Liability

Question 1

For most serious criminal offences 2 elements must be present:

Answer 1

1. Actus reus:
   the guilty act. It is an act, or an omission, that the law seeks to prevent.
2. Mens rea:
   the guilty mind. This is the culpable state of mind at the time of the wrongful act.

Question 2

Actus reus

Answer 2

An actus reus consists of all the elements of an offence apart from the mental element.

Question 3

Mens rea

Answer 3

• The mens rea of an offence describes the mental state of the defendant at the time of the offence; the defendant must have a guilty state of mind at the time of committing the actus reus.
• Each crime specifies what the mental state must be in order to be found guilty of that crime.
• For example, the mens rea of murder is specific intent: only INTENT to kill or cause grievous bodily harm will suffice for the crime of murder.

Question 4

For example, the actus reus of murder consists of 3 elements:

Answer 4

1. An unlawful killing
2. Of a human being
3. Under the Queen’s peace

Question 5

Types of actus reus

Answer 5

• CONDUCT CRIME:
the actus reus is constituted by the BEHAVIOUR, for example fraud by false representation.

• RESULT CRIME:
the actus reus requires a particular CONSEQUENCE, or ‘result’, for example for murder the result must be the death of a human being.

• OMISSION:
in Anglo/American law, there is no criminal liability for an omission to act unless a statute or the common law imposes a positive duty to act.

Question 6

Types of mens rea in UK

Answer 6

1. Intention
2. Recklessness
3. Negligence

Question 7

Types of mens rea in USA (Model Penal Code)

Answer 7

1. Intention (or purpose)
2. Knowledge
3. Recklessness
4. Negligence

Note: the USA has federal criminal statues and state criminal statutes. The Model Penal Code separates knowledge from intention.

Question 8

Direct intent

Answer 8

Occurs when the consequence is desired (e.g. shooting specific people)

Question 9

Oblique intent

Answer 9

Occurs when the consequence is expected to be virtually certain also when it has not been specifically desired (e.g. placing a bomb on a plane to destroy the plane, it was however virtually certain that the pilot would die)

Question 10

Recklessness

Answer 10

Taking an unjustifiable risk.

The TEST for recklessness is SUBJECTIVE; the defendant was aware of the risk and so acted unreasonably.

Question 11

Negligence

Answer 11

OBJECTIVE test; failure to meet the standard of a REASONABLE person in that situation. The negligence must be gross to incur criminal liability.

Reasonable person test.

Question 12

Basic intent crimes

Answer 12

for these crimes either the mens rea of intent or recklessness, for example criminal damage.

Question 13

Specific intent crimes

Answer 13

for these crimes only the mens rea of intent (direct or oblique), for example murder.

Question 14

Strict liability offences

Answer 14

• Strict liability offences are an EXCEPTION to the rule that there must be both an actus reus and mens rea to constitute a crime.
• NO mens rea needs to be proved.
• A company or other employer can be held liable for the strict liability offences committed by employees through the doctrine of VICARIOUS LIABILITY (US: doctrine of respondeat superior)

Question 15

Strict liability crimes are mostly…

Answer 15

Statutory offences

For example:

• selling sub-standard food
• putting dangerous products on the market
• water pollution prosecution