Outline the basic elements of a crime

A crime is an action that is forbidden by the courts or by Parliament. Two basic and the most important elements of crime are 'mens rea' and 'actus reus'.

'Mens rea' translates as 'to have in mind" from Latin. It is an important element of any crime because it relates to the need to determine whether the defendant held the sufficient state of mind to have the intent to commit the particular crime in question with the ‘guilty mind’.- 1) According to the Hyam v DPP [1955] AC 55 case it relates to the idea that there is sufficient “criminal intention". Sweet v. Parsley [1970] AC 132 case illustrates that mens rea is required when the offence is a true crime as oppose to a normative offence.

'Actus reus' translates as “to do an act" from Latin, i.e. the occurrence of the criminal act or an unlawful omission of an act. It is the act which, in combination with mens rea constitutes a crime. For example, the crime of theft requires physically taking something (the actus reus) coupled with the intent to permanently deprive the owner of the object (the mens rea).

There are also other basic components of a crime such as concurrence and causation.

The concurrence is simultaneous occurrence of both actus reus and mens rea- only in this case the offence can be counted as crime, because there must be either overt and voluntary action or a failure to act when physically able as required by statute or law -2] Sometimes offence can be counted as crime even when there is no occurrence of actus reus and mens rea at the same time: when there is no intent of offence- as in Fagan v MPC [1969] 1 QB 439 case or when offence does no happen immediately after the intent to actually commit a crime has materialised- e.g. R v. LeBrun (1991) 4 AER 673 case.

The causation is actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt- 3]. Causation has to be proved in order to consider whether criminal offence has happened. However its hard to prove causation unless it involves sex.

Organisation can be convicted when crime is committed either by corporation itself or by individuals that may be identified with it. The offence itself occurs when an organisation is in gross breach of a relevant duty because of the way it's activities were managed and organised.

Reasons for regarding corporation committed a crime vary, as there are different range of criminal liabilities.

If it belongs to less serious crimes, then usually proof of only actus reus is required. Many of them are based on strict liability. Example- Pharmaceutical Society of Great Britain v Storkwain (1986), the defendant was charged under s58(2) of the Medicines Act 1968. He was prosecuted (though he supplied them on prescription, which was later found to be forged), because actus reus was voluntary.

If it is serious crime, i.e. corporate manslaughter, it requires both actus reus and mens rea. Example- Sears Bankruptcy Recovery Management Services Inc. (1999), that were trying to illegally collect debts from customers who had declared bankruptcy. In February 1999 it was plead guilty to one count of bankruptcy fraud and had to pay a fine of $60 million – 4]

When corporate manslaughter (situation in which a company can be charged of a death of employee which was caused because it failed to manage or organise its activities) happens, Corporate Manslaughter Act is used- the courts will make judgement by looking at corporation's activities, whether an adequate standard of care was applied to the fatal activities, and then decide whether corporation's offence can be regarded as crime. Tesco Stores Ltd v Pollard [2006] EWCA Civ 393, a 13 month old child fell ill when it ate some washing powder from a product that had a faulty child resistant cap. It was bought from Tesco, but manufactured by another company. When bringing proceedings against Tesco and the manufacturer, Tesco joined the mother for negligence in not properly looking after the child. The Court of Appeal found Tesco and the manufacturer alone liable under the Consumer Protection Act 1987- 5]

According to C.M.V. Clarkson, there are six methods by which companies can be held criminally responsible (at least, for crimes involving mens rea)-6]

The traditional method is under the identification doctrine- when top executive commits offence within the course of his/her employment, and both that act and mens rea can be “attached" to the company. Corporation cannot be identified with a crime committed by a person belonging to lower hierarchy, because his actions cannot be counted as company's actions. In this case the prosecution can be brought against the individual concerned- 7]

Another method- aggregation doctrine (not used in UK and Wales). Acts and mental elements of various relevant people within the company are ascertained, and court decides whether in total they would amount to a crime if they had all been committed by one person.

Third method is reactive corporate fault. When it becomes known that the actus reus of an offence has been committed by company, a court should have power to order it to conduct its own investigation in order to understand who was responsible and then take appropriate measures. If they are fulfilled, then there will be no criminal prosecution.

Vicarious liability is used in USA widely: when a corporate agent acts within his/her employment and with intention to benefit corporation, commits a crime, company can be convicted.

An offence can be committed due to management failure which caused person's death and it constitutes conduct “falling far below what can reasonably be expected of the corporation in the circumstances" (Law com #237, cl 4(1)).

Another approach is corporate mens rea doctrine- legal fiction of corporation personality is accepted as a fiction, and therefore there seems to be no reason why corporate mens rea fiction should not be developed by law.

Why is it difficult to secure convictions of companies for these criminal offences and how have these problems been addressed by the government?

Even though according to English Law corporation is juristic person, unless an individual employee committed all elements of offence, it was impossible to prosecute the company (so firms were punished rarely, and thought they can escape detection) before 2007. In 6 April 2008, Corporate manslaughter and corporate homicide act came into the effect in the UK, and rather than looking at actions of individuals, it looked at those of an organisation.

Another problem is that in larger companies it is very unlikely that a senior manager will actually commit the actus reus of an offence with the accompanying mens rea, I.e. in National Rivers Authority v Alfred McAlpine Homes East (1994) 4 ALL ER , Morland J stated that: “In almost all cases the act or omission will be that of a person such as a workman, fitter or plant operative in a low position of hierarchy".

Also acts and mental elements of various relevant people might cumulatively amount to a crime, but in reality none of this individuals need personally be at fault.

Oliver reads an advertisement for a sale at Jose's Apparel Ltd, a clothing shop. He decides to go and search for a bargain. However he cannot find a single item at the sale prices. He knows that you are a law student and asks for your help.

There are a couple of main issues to be dealt with during the course of this problem. Firstly, whether the firm can be convicted for misleading advertising. Secondly, whether shopkeepers, or person responsible of that were aware of the fact that there are no more clothes at the sale prices.

The question at issue is whether it was misleading advertisement. To establish the claim in misleading advertising the claimant must be able to prove it- needs to show the evidence, the Control of Misleading Advertisements Regulations 1988 provides the legislative back-up to the systems in respect of misleading advertisements. Shop can be prosecuted under Competition Act- firms involved in anti-competitive behaviour may find their agreements to be unenforceable.

If the advertisement is veracious, then there is another issue- whether shopkeepers were aware of the fact that there are no more clothes at the sale prices. The corporation can be prosecuted under the Trade Descriptions Act 1968, like Tesco Ltd v Natrass. Section 24(1) of this act provides: In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control." -8]

Also it depends on whether the advertisement he saw was on the shop windows or inside the shop, as it does not indicate where did he see this advert. If he saw it in newspaper/ TV, he is able to complain to ASA, which is responsible for the non-broadcasting media, about the content of an ad, unwanted mail or the non-delivery of goods, promotional items or refunds.

Next we will evaluate the facts of the current case in light of the laws discussed above. Overall the company can be prosecuted for two reasons: misleading advertising or for mens rea. First of all, we need evidence that there was a misleading advertising- as mentioned before, you can complain to ASA, which is responsible for the non-broadcasting media, about the content of an ad, unwanted mail or the non-delivery of goods, promotional items or refunds. After evidence is found, the shop can be prosecuted under Competition act.

If all items were sold out and shopkeepers failed to take the sale notices out, as in the Tesco Ltd v Natrass AC 153 [1971] case, for Oliver to win the case, he must prove that person responsible for checking daily return in Jose's Apparel Ltd, has seen that there are no clothes at the sale prices, and deliberately did not take out sale signs in order to attract more customers, not because of diligence. Firm can be prosecuted under section 24(1) of Trade Descriptions Act 1968. However, Jose's Apparel Ltd can not prosecuted, as sales manager controls the stock of clothes on sale, and he is not the directing mind of the company, but if this has included people standing higher in hierarchy, then firm can be accused.

There are two possible outcomes: in case if he can prove misleading advertising, the firm will be prosecuted and fined, while if clothing shop can prove that it did not take the signs off due to negligence, rather than intention to attract customers, then it cannot be prosecuted, otherwise the court will have to find out whether it was sales manager's fault, or top executives were involved. In the latter case, firm can be convicted.

Footnotes

http://www.law-essays-uk.com/revision-area/criminal-law/criminal-elements/mens-rea.php

"Criminal law". Encyclopaedia Britannica. Retrieved 2008-01-07

en.wikipedia.org

http://www.nytimes.com/1999/02/10/business/sears-to-pay-fine-of-60-million-in-bankruptcy-fraud-lawsuit.html.

http://wikibin.org/articles/litigation-involving-tesco.html

http://webjcli.ncl.ac.uk/1998/issue2/clarkson2.html

Richard S. Gruner. Corporate criminal liability and prevention.1 volume