Cases and Materials on Criminal Law †Free Samples to Students

Question: Discuss about the Cases and Materials on Criminal Law. Answer: Introduction: Through the landmark case of Salomon v Salomon Co Ltd [1896] UKHL 1, the companies had been given the status of being a separate legal entity, which is different from the ones who run its operations (Harris, Hargovan Adams, 2016). This means that a company is treated differently from the ones running its operations. And yet, there are times where the company is held liable for the negligent directors or shareholders, particularly under the tort law (Latimer 2012). This is based on the principle of vicarious liability and the ones based on statute, which is discussed here under. Before going into the common law liabilities for the company, regarding the tort undertaken by its directors, there is a need to look into the liability being raised under the statute. As highlighted earlier, the company has separate legal entity status and this status is upheld under the Corporations Act, 2001 (Cth) (Cassidy 2006). Yet, there are cases where the ones behind the operations of the company are made liable for the actions undertaken by them. This is due to the notion that the ones who direct the mind and will of the company, have to be made liable for the offences undertaken by them. However, it is often difficult to differentiate between the acts undertaken by the company, and the ones by people who were directing the mind and will of the company (Lipton, Herzberg Welsh 2016). In this context, the case of Tesco Supermarkets Ltd v Nattrass [1972] AC 153 is of help as it clarifies the directing mind theory in context of the corporate liability. This case had the employee of large chain of supermarkets advertising goods for sale in a deceiving and misleading manner for the consumers. It was held by the House of Lords that the store manager was not in control of the operations of the company. The work of the company had been properly delegated which led to the decision that the acts of store manager could not be deemed as the acts of company (Quilter 2017). As against this, in H L Bolton Co v T J Graham Sons [1957] 1 QB 159 it was concluded by the court that the directors were the mind and will of the company. The intention of the company was derived from the intention of its agents and officers. A key point which is worth noting here is that there is a need for companies to be made liable for their negative acts, and where the company had been directed by another person, that person had to be made liable for the fault element. Basically, in a tort and even in criminal cases, through the concept of vicarious liability, the company is made liable for the acts of employees of the company. When it comes to the case of direct or organic liability, the directing mind and will is looked at (Yogaratnam Xynas 2017). The clash between directors being made liable at certain instances and not liable at other instances is based on the facts of the particular matter. The acts of the directors are deemed as the acts of the company since they are deemed as the organs undertaking the work for the body. As against this, there are cases where the agents can be personally made liable for the torts which they undertake as being the joint tortfeasors with the company. A leading example of this is the case of Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517. This contradictory position puts the law in murky position due to lack of clarity in which acts are exclusively undertaken by the agents and that by the company (Anderson 2008). In Microsoft Corporation v Auschina Polaris Pty Ltd [1996-7] 142 ALR 111, 121, Justice Lindgren agreed to this difficulty being present and this position was later on affirmed by Justice Hardie Boys in Trevor Ivory Ltd. v Anderson. The reason for holding the company or the ones running it liable is to adequately protect the ones injured from the tortious acts, where they are property compensated for the damage/ loss or injury sustained by them. Justice Hardie Boys stated that for holding such a case of negligence, there was a need for showing the duty of care being present. Before holding the corporate or its agents liable, it was required to find clear evidence for displacing the notion that the director was not acting as the company, and had acted in an independent manner, for him to be made liable (Farrar 1997). Thus, there are cases where the directors can be made liable for the torts undertaken by the company and then there are cases where this might not be the case. In Australia, the criminal liability for the corporate legal persons has been recognized since long. Majority of principles which govern corporate criminal liability come from common law. The corporate criminal responsibility is provided at federal level under the criminal code, particularly under division 12, part 2.5 of Chapter 2 (Gans 2012). These are the provisions through which a company can be made liable for crime. A company can be held liable for undertaking an offer, till such time the definition or the subject matter can prove otherwise. So, for an offence covered under the criminal code, a company can be made liable, which includes the offences which have imprisonment as punishment. Particularly in context of white collar crimes, the companies can be held guilty of criminal offences, for instance for the briber given to different public officials, money laundering, false accounting offences, and for contraventions of sanctions of law as well (Allens 2016). However, such criminal liability is born where there is a fault element involved and a physical element involved. The fault element covers intention, knowledge, negligence and reckless; whilst the latter covers physical elements to show that the offence had actually taken place. For making a company liable under the offence charge, there is a need to show conduct and intention. The fault element comes with exception in terms of absolute a nd strict liability offences. In other words, for establishing strict liability, there is a need for showing that the fault element was present (Denning 2014). For holding the company liable of such offences, different tests are made use of by the courts. The first one in this regard was given under Tesco Supermarkets Ltd v Nattrass [1972] AC 153, which was the identification test. This provides that a person does not speak or act for the company, upholding the principle of separate legal entity (Dignam Hicks 2011). The individuals have their own mind and they become the mind and will of the company, as discussed earlier. So, the guilt mind of the person has to be taken as the guilt of the company. This approach however, has been largely spoken against due to the corporate liability being restricted in the acts of the high level managers and that of directors. So, this allows for the big companies to escape their criminal liability easily, as they can claim that it is the act done by the employees and they directed the will of the company, instead of the company itself (Dine, Gobert Wilson 2010). The next test which is often made use of is the benefit test. This test has been used by the Australian Federal Court where the company is made liable when it attains the benefit from such acts. There is a varied application of this test where the organic theory comes into play, and where the acts are undertaken based on mind and will concept, as against the agency theory, which makes the company liable for the acts of the agents (Beaton-Wells Fisse 2011). The precedent set through Tesco Supermarkets Ltd v Nattrass, was adopted by High Court in Hamilton v Whitehead (1988) 16 CLR 121. This case saw an issue regarding the individual commissioning the offence as the directing of will and mind, which was the companys embodiment. There is a need to show guilty test in terms of mens rea to be established in this test (Wee Gauja 2015). Under the criminal code, whenever it is required to establish that the company had been negligent, the conduct of its employees, agents and officers is combined and aggregated. The case of negligence is established by the fact that restricted conducted was majorly attributed to the lack of proper corporate management, control or supervision of officers, agents, or employees conduct, or to the failure in making available the required system for providing the requisite information related to the relevant persons in the company. The common law holds the companies liable for the mental state and conduct of directing mind of the individuals on behalf of the company. The will here is of the board of directors, key personnel and managing directors, who perform the board functions. Where the employee or the agent acts based on their scope of employment, which includes both ostensible and actual authority, and indulge in physical element of offence, the criminal law would hold the company lia ble where they permitted or authorized such offices to be commissioned in a tacit, express or implied manner (Allens 2016). References Allens 2016, Corporate criminal liability, https://www.allens.com.au/pubs/pdf/ibo/CorporateCriminalLiabilityPublication_2016.pdf Anderson, H 2008,Directors' Personal Liability for Corporate Fault: A Comparative Analysis, Kluwer Law International. Beaton-Wells, C, Fisse, B 2011,Australian Cartel Regulation: Law, policy and practice in an international context, Cambridge University Press. Cassidy, J 2006, Concise Corporations Law., 5th edn., The Federation Press. Deming, SH 2014,Anti-bribery Laws in Common Law Jurisdictions, Oxford University Press. Dignam, AJ, Hicks, A 2011,Hicks Goo's cases and materials on company law, Oxford University Press. Dine, J, Gobert, J Wilson, W 2010,Cases and materials on criminal law, Oxford University Press. Farrar, JH 1997, The Personal Liability of Directors for Corporate Torts, Bond Law Review, vol. 9, no. 1, pp. 102-113. Gans, J 2012, Modern criminal law of Australia,Cambridge University Press. Harris, J, Hargovan, A Adams, M 2016, Australian Corporate Law. 5th edn., LexisNexis Butterworths. Latimer, P 2012, Australian Business Law 2012, 31st edn., CCH Australia Limited. Lipton, P, Herzberg, A Welsh, M 2016, Understanding Company Law, 18th edn., Thomson Reuters (Professional) Australia Limited. Quilter, M 2017, Company Law Perspectives, 3rd edn., Thomson Reuters (Professional) Australia Limited. Wee, S Gauja, A 2015, Corporate crime, fraud and investigations in Australia: overview, https://uk.practicallaw.thomsonreuters.com/6-519-2034?transitionType=DefaultcontextData=(sc.Default)firstPage=truebhcp=1 Yogaratnam, J Xynas, L 2017, Corporations Law: In Principle, 10th edn., Thomson Reuters (Professional) Australia Limited.