Communication Essay

1346 words - 5 pages

VICARIOUS LIABILITYDefinition of corporate criminal liability:A corporation can be held criminally liable for the acts, omissions or failures of an agent acting within the scope of his employment. Throughout the years, the courts have established different perspectives towards the criminal charges against groups of people and corporations and have approached a new database of setting regulations, which defines in which conditions a corporation, should be condemned for a crime. Courts put the gravity of such circumstances on corporation's employees as means of mens rea and act cactus reus to the corporation, since corporations are legal incorporeal entities.( Geraghty, Annie 2002).[2: ]Companies have long been recognised as legal persons17 intheir own right. However, as expressed by Lord Reid in TescoSupermarkets v Nattrass:"A living person has a mind which can have knowledge or intention or be negligent and he had hands to carry out his intentions. A corporation has none of these."In order to get around this problem the law has developed various techniques for attributing liability to corporateentities. The first technique is the application of vicarious liability, which provides that a company will be strictly liable for criminal acts carried out by its employees in the course of their employment. However, as a general rule, vicarious liability does not form part of the criminal law in the UK.The second technique is known as the "identification theory" and constitutes the primary method of imposing liability on companies under UK law. The identification theory provides that as a company has no mind of its own, it is necessary to identify the company's "directing mind and will". If the directing mind and will possessed the necessary mens rea for a particular offence, this state of mind is attributed to the company, which will then be liable for the offence. As a tool for securing the conviction of corporate entities within the context of financial crime the identification theory is weak. In large part, this is due to the narrow definition given to "the directing mind and will". In general, this phrase has only been applied to directors and senior managers. The problem is that in large corporations it is often difficult to prove that directors, or equivalent persons, had a direct hand in the day-to-day running of the company and particularly in large multinational corporations duties are generally subdivided between several individuals. Hence it is difficult for the prosecution to establish that any one person carried out all of the elements of the actus reus with the necessary mens rea.To determine the purpose of corporate criminal liability, we must realize that it is only one of a number of different liability strategies that can regulate behavior in and around corporations. Corporate criminal liability is socially desirable when corporate liability is optimal, when detection and prosecution are difficult, when sanctions on corporations need to...

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