Crime Comprises of Two Elements

1513 words (6 pages) Essay in Company Law

02/02/18 Company Law Reference this

Last modified: 02/02/18 Author: Law student

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Corporate legal persons (companies and limited liability partnerships – LLPs) can be held responsible for unlawful omissions. A firm may be vicariously liable if there is a case of money laundering, tax evasion and manslaughter. If employees under the corporate hierarchy have behaved unethically, the firm may also be subjected to criminal law. The conducts of the senior executives or those employees who are higher up in the hierarchy are recognised by the company. The corporation may only be personally or directly liable for their own actions by distinguishing the individual with ‘controlling mind’. Corporations have been found guilty for various offences committed by their employees in some up-to-date cases. One of the models of corporate liability which is identification in Tesco Supermarkets Ltd v Nattrass [1972] whereby on appeal to the House of Lords (HL), conviction was quashed on the grounds that the branch manager was not part of the ‘controlling mind’ in Tesco’s management structure as he was not in the senior management. The similar rule was applied to a different statute when Tesco was caught in a subsequent case. CA held that the section imposed a vicarious liability would mean that the company has the immediate responsibility to provide evidence of precautionary measures had been taken to ensure safety even though workforce at the lower level did not take reasonable practicable measures. In a later case in the CA, Tesco Stores Ltd v Brent LBC [1993], Tesco was convicted of strict liability offence for selling videos to under-age children and the Divisional Court rejected the argument that Tesco did know that the individual was under-age. In general, the Courts will give a ruling after considering all the actions of the employees in a corporation.

The proof of only actus reus may apply to less serious crimes whereas mens rea is not required in many commercial agreements. This is also known as strict liability offences which are primarily regulatory offences to secure convictions against corporate entities in relation to health and safety. In Harrow London Borough Council v Shah [1999], it is a strict liability offence to sell National Lottery tickets to a person under the age of 16 as it is an issue of social concern stated by the Divisional Court. In the case of Alphacell v Woodward [1972], the defendants of a company were accused of causing pollution to a river. HL stated that if reasonable people would regard the matter as something which the defendant had done, despite whether he or she knew of his or her actions, then mens rea is not required. The company had caused the river water to be polluted and hence, conviction was upheld. In Callow v Tillstone [1900], a butcher was convicted because he sold meat in poor condition even though the meat was certified as safe by a vet before the butcher sells them and regardless of how diligent he was ensuring the safety of the meat.

It has been difficult to convict corporate legal persons due to the proof a guilty mind. The prosecution has to prove that an individual was responsible and he or she played the role of the ‘controlling mind’. This is a very important tool in determining whether he or she is liable for a person’s death. In R v P&O European Ferries (Dover) Ltd [1991], a ship’s officer fell asleep while on duty and failed to ensure the ferry doors were closed before it set sail. As a result, 190 passengers and crew were killed. P and O escaped liability because the ‘controlling mind’ could not be identified and hence, no director was held responsible for the event. In Piper Alpha [July 1988], a massive explosion destroying a North Sea oil platform killed 67 out of the 229 people on board. Conviction was quashed because of the difficulty in securing the ‘controlling mind’ which was also the same problem in P&O European Ferries case. On the other hand, in R v Kite and OLL Ltd [1994], where a leisure company and its managing director were found guilty of corporate manslaughter in the Lyme Bay kayaking tragedy after several students were killed by sending an untrained staff to rough seas in canoe. It was apparent that the director has a greater influence on the conduct of company’s manager and the courts were able to identify the guilty act and the managing director as the ‘controlling mind’.

The difficulty in securing convictions against corporate legal persons after deaths occurred at work has led to the existence of a new legislation that is now the Corporate Manslaughter and Corporate Homicide Act 2007 which came into effect on 6th April 2008. The first company to be charged under this act was Cotswold Geotechnical Holdings whereby a junior geologist was killed when pit collapsed while collecting soil samples. This legislation will be able to prosecute employers who may be held directly responsible for deaths at work due to gross negligence. Also, the Act gives emphasis to gross breaches of relevant duties and the judgment and actions of high-level employees. As such, prosecution will no longer have to bias against a senior director or manager and prove that one senior employee is at fault.

1 b). Oliver cannot sue Jose’s Apparel Ltd. under contract law. This is because the advertisement was not an offer for sale but was only an Invitation to Treat. An Invitation to Treat is simply an invitation to people to make an offer. This is distinguished from an offer which can be defined as a person’s willingness to enter into a contract and be bounded by its term and conditions. In Harvey v Facey [1863], giving information was not an offer but was just an indication of the lowest price if he decides to sell. In the case of Fisher v Bell [1961], a shopkeeper was prosecuted for displaying illegal flick knives for sale as contrary to Restriction of Offensive Weapons Act 1959. On appeal, it was held that it was not an offer for sale but was merely an Invitation to Treat. Hence, conviction was quashed. This was also upheld in the case of Partridge v Crittenden [1968]. Alternatively, the company can be sued under contract law if there is a reward stated on the advert whereby Oliver had performed the specified actions which would automatically be an acceptance. Hence, the company may be liable and be subjected to compensate Oliver. This was upheld in Carlill v Carbolic Smoke Ball Co. [1983] concerning unilateral contract.

Alternatively, Jose’s Apparel Ltd. may be sued under criminal law since the State could take an action against the shop under Trade Description Act (TDA) 1968 which had been created to safeguard consumer’s interests. The clothing shop may be liable under S.1 of this Act which states that it an offence to apply a false trade description to any goods or supplies or offers to supply any goods to which a false trade description is applied in the course of a trade or business. Prices were not changed in accordance to the sale prices and hence, it was a false description which is a strict liability offence. Also, Jose’s Apparel Ltd. could be liable under S.11 (2) TDA 1968 for displaying a misleading price notice. S.11 (2) stated that if any person offering to supply goods of any description gives, by whatever means, any false indication to the effect that the price at which the goods are offered is equal to or less than a recommended price or the price at which the goods or goods of the same description were previously offered by him or is less than such a price by a specified amount, he shall, subject to the provisions of this Act, be guilty of an offence. This was upheld in Tesco Supermarkets Ltd. V Nattrass [1972]. In Tesco v Brent [1974], Tesco was convicted for strict liability offence as to selling videos to under-age children. As such, failure to comply with the Trade Descriptions Act 1968 amounts to a criminal offence. When a consumer is misled, Jose’s Apparel Ltd. may be subjected to a fine up to £5000 in the magistrates’ courts.

Under Part 3 of the Consumer Protection Act 1987, it is a criminal offence to give a misleading price indication to consumers. In addition, the Consumer Protection from Unfair Trading Regulations 2008 made it unlawful for shops to display the price of an item contrary to the price showed at the point of sale. The clothing shop may also be held liable under both of this Act. When the Consumer Protection from Unfair Trading Regulations interferes with the TDA 1968 and Part 3 of the Consumer Protection Act 1987, it will revoke most of them. Additionally, the Trading Standards is established to preserve a fair market and to uphold consumer’s rights in order to prevent them from being exploited. Oliver can complain to the Trading Standards Officer regarding his problem of finding a single item at sale prices so that necessary actions can be taken against the shop.

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