Before the CMCHA: The Identification Principle
As previously established, companies are legal entities. As such, they may be criminally responsible for offences requiring mens rea by application of the identification principle. The identification principle, or doctrine, is where the “acts and state of mind” whom represent the “controlling mind” of the company will be imputed to the company itself (R v Lennards Carrying Co and Asiatic Petroleum (1915); R v Bolton Engineering Co v Graham (1957); (R v Andrews Weatherfoil and others (1972)). These cases were prosecuted under the common law.
The identification principle acknowledges the existence of corporate officers who embody the company when acting in its business. They are known as “controlling officers” as their acts and states of mind are deemed to be those of the company. Thus, criminal conduct by such officers will be offences for which they can be prosecuted both as individuals, but also as the company because of their status.
There have been five principal cases of corporate manslaughter brought to trial before the CMCHA, and only one of them resulted in a successful prosecution. This was a direct consequence of the fact that Peter Kite – owner of OLL Limited – was directly in charge of the activity centre where four teenagers died in the Lyme Bay canoeing tragedy of 1993.
Arguable the most famous corporate manslaughter case came to trial in the late 1980s, when the Herald of Free Enterprise – a car ferry owned by European Ferries – capsized in 1987 off the Belgian coast. This resulted in the loss of 193 lives. The reason for the failure of a successful conviction was due to the fact that there was no “controlling mind” whom the failure could be solely attributed to.
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...he attribution of culpability to limited companies". Cambridge Law Journal 55 (3): 515.
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Cases
Attorney General's Reference (No. 2 of 1999) [2000] QB 796, CA
DPP v. P & O European Ferries (Dover) Ltd. (1991) 93 Cr. App. R. 72
R v. HM Coroner for East Kent ex parte Spooner (1989) 88 Cr. App. R. 10 at 17
R v. City of London (1882) St. Tr. 1039 at 1138
Books
Fisse, B. & Braithwaite, J. (1994). Corporations, Crime and Accountability. London: Cambridge University Press.
Matthews, R. (2008). Blackstone's Guide to the Corporate Manslaughter and Corporate Homicide Act 2007. Oxford: Oxford University Press.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
Miller, R. L., and Hollowell, W. E. (2006). 2007 Business law and legal environment texts. Mason, OH: West Legal Studies in Business.
Reisman, W.M. (2008). Acting before victims become victims: preventing and arresting mass murder. Case Western Reserve Journal of International Law, 40 (1), 57-85. Retrieved from http://proxy.lib.clemson.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=34239668&site=ehost-live
The General Court. "General Laws." : CHAPTER 265, Section 37. 2014. Web. 20 Apr. 2014. .
In 1989 there was an appalling(or shocking) case where a man and a woman had both been killed. The man had been shot in the back of the head, and in several other places, including the kneecap, the woman was shot in the leg, the arm several times and the kneecaps as well to make it seem as if it were an organized crime. Later the
First and foremost, is the case of Peter Reilly. Peter Reilly was convicted of manslaughter at the age of nineteen in 1974 (Lender, 2011). Reilly had found his mother dead in their home (Lender, 2011). Peter Reilly was interrogated without legal council for over an entire day’s t...
The main legal issue before the court arises, in determining whether liability should be extended to reach assets beyond those belonging to the corporation and whether the corporate veil should be pierced with regard to personal liability to others.
Stuart. Death of a Criminal. 20 April 1999. Justice For All. 19 April 2001. www.prodeathpenalty.com.
D’Alembe, Talbot “Understanding the Death Penalty Study Commission Report” Raising the Bar in Capital Cases. 34.2 ( 2007): n.pag. Web. 24 Jul 2014.
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
2. Berns, Walter. “Crime and the Morality of the Death Penalty.” For Capital Punishment. New York: Basic Books P, 1974.
Champion, D 2011, ‘White-collar crimes and organizational offending: An integral approach’, International Journal of Business, Humanities, and Technology, vol. 1 no. 3, pp. 34-35.
CEO Kenneth Lay’s ambition for ENRON a company he had helped form went beyond the business of piping gas. Enron went to become the largest natural gas merchant in North America and the United Kingdom. But the reality is, this company business model never worked. This was a company that was so desperate to win Wall Street 's respect that it kept it stocks shares prices going up despite the losses it was incurring in order for executives to keep lining their own pockets. Over the course of this Case Assignment, I will identify the examples of financial reporting misconduct, I will explain the deontological as well as a utilitarian ethical perspective and lastly I will identify the stakeholders likely to be affected by that misconduct.
The Principle of Separate Corporate Personality The principle of separate corporate personality has been firmly established in the common law since the decision in the case of Salomon v Salomon & Co Ltd[1], whereby a corporation has a separate legal personality, rights and obligations totally distinct from those of its shareholders. Legislation and courts nevertheless sometimes "pierce the corporate veil" so as to hold the shareholders personally liable for the liabilities of the corporation. Courts may also "lift the corporate veil", in the conflict of laws in order to determine who actually controls the corporation, and thus to ascertain the corporation's true contacts, and closest and most real connection. Throughout the course of this assignment I will begin by explaining the concept of legal personality and describe the veil of incorporation. I will give examples of when the veil of incorporation can be lifted by the courts and statuary provisions such as s.24 CA 1985 and incorporate the varying views of judges as to when the veil can be lifted.
The Enron case is very intriguing case of corporate corruption and greed. As we review some of the company’s facts and history along with other areas of the corporation, we can see that this case is filled with great examples of business ethics put to the