The Implications Of The Criminal Law - Essay Example

Criminal law a] Outline the basic elements of a crime and illustrate how business operations can be ed to criminal law. What problems have made it difficult to secure convictions of companies for major criminal offences? How have these problems been since addressed by the government? From a legal perspective1, crime is the violation of law;2 in this context, the elements of crime can be characterized as follows: a) crime is an action; thoughts cannot be characterized as crimes; thus, crime has a physical existence, b) crime is an action which is opposed to an existing legal rule; in this context, actions which are not characterized by the law as crimes cannot be punished, c) the offender need to have the ability of critical thinking – in the sense that an imputation of guilt can take place; for people who do not have aesthesis, i.e. those who lack of objectivism cannot be punished for an action which is characterized by the law as offence; however, it is possible that the guardians of these persons are considered as having the responsibility for the actions of the offenders, d) the intention of the offender to commit the crime is also a necessary requirement for the existence of crime as a punitive behaviour.3 At the next level, the following clarifications need to be made: crime has both an active and a passive form; it can be expressed through a specific activity or it can refer to the failure of taking the measures required for the avoidance of an offence. Furthermore, a problem may exists when an offence involves in more than one countries which have evaluated the specific action differently: the law of one of these countries characterizes the action as crime while the law of the other country states that the specific action does not meet the requirements of a crime; usually, the law of the country where the specific action took place is applied; so, no conflict of law is developed. Moreover, it is possible that an action does not constitute a crime at the time point of its development but it is later characterized as a crime – with a new legal rule. This problem is usually addressed by the limitation of retrospective laws – usually laws of such type are avoided in the area of criminal law. In accordance with the issues discussed above, criminal actions can be committed by individuals – persons; organizations of various types can be considered as legal entities in regard to a series of activities but they cannot be held liable for criminal offences – however, it is still possible for crimes to be committed in the context of organizational activities – in this case the individuals who act in the name of the organizations (legal representatives)4 will be held liable for any offence committed in the context of their organization’s operations.5 In other words, corporate crime is differentiated from the common forms of crime – which can cause fear to people; corporate crime – which is also known as white-collar crime – refers to the commitment of actions which are usually related to economic damages – on individuals, other companies or the state;6 the damages caused to the environment in the context of organizational operations are also characterized as corporate crime.7 In accordance with a definition given by Clinard et al. (2005) ‘corporate crime is organizational crime’.8 Under these terms, the convictions of companies for major criminal offences cannot be easily secured, mostly because of the following reasons: a) even if when a criminal offence has been reported, examined by the authorities and supported – by relevant probative material – it is necessary that the offender is clearly identified; in practice, this task can be quite challenging in the context of organizational environment; corporate activities can be complex and it is usually difficult to identify all the person(s) who initiated and committed an organizational crime; without having – surely – retrieved the identity of the offender(s) it is not possible for the relevant procedure to proceed,9 b) the material proving the offence – and its aspects – is usually difficult to be fully retrieved; in case of a trial, the judgment needs to be based on the actual conditions of the offence, c) corporate crimes are difficult to be identified mostly because they are not likely to be reported – since only the offenders are aware of these crimes; moreover, usually only the offenders have access to the probative material – the material that could prove the existence of the corporate crime.10 Finally, corporate crimes can be expanded quickly – mostly because of the lack of restrictions and monitoring in regard to the transnational corporate activities.11 The above problems have been partially resolved through the initiatives undertaken by the government – referring to the introduction of a series of legislative texts addressing the various aspects of corporate crime; referring also to the establishment of organizations that focus on the identification and punishment of corporate crimes both at national and international level.12 The above initiatives have led to the limitation of corporate crime internationally – at least compared to the past where the development of corporate crime was quite difficult to be controlled. The recent recession helped to understand the need for introducing strict regulations in regard to the white-collar crime and to increase the effectiveness of authorities internationally regarding the identification and punishment of the offences of this type. (Words: 840 – including footnotes: 1190) b] Oliver reads an advertisement for a sale at Joses 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. What advice can you offer? The advertising of sales is an action acceptable by the existing law; however, in order for the specific action to be legally justified it is necessary that it meet certain requirements.13 In the case under examination, the consumer visited the clothing shop being influenced by the sales advertising. He finally didn’t buy something. The following issues have to be clarified: a) Oliver didn’t suffer any damage; in case that he had buy something which should have reduced price but, instead, Oliver had paid the full price, then an issue of compensation for the damage caused to Oliver could appear, b) the fact that Oliver simply visited the shop and he didn’t find a product in sales price cannot justify a claim for compensation – unless the shop has been quite far and Oliver is able to prove that the cost of his travel up to the shop has been significant. In the specific case, Oliver sets no such issue; it can be assumed that the cost of his transportation to the shop has been low – at a level that no compensation could be asked just for visiting the shop. However, there is the following case: in case that the products offered by the firm were rare – for instance, in terms of their technical characteristics – and Oliver avoided to visit another shop – where these products were also available – then he can ask for compensation based on the fact that he could have acquired these items by the other shop if he was not influenced by the sales advertising of the particular shop; again, no such issue seems to exist in this case. Instead, the products of the specific shop are common – clothes – and they can be easily acquired through another shop. So, the above argument would not be appropriate – as the previous one – for justifying a claim of Oliver for compensation. It should be noted at this point that even if Oliver had suffered an economic loss it would be still difficult for him to be awarded a fair compensation since there is neither clear description nor regulation of these activities/ offences in the rules of existing private law and tort law.14 On the other hand, through the events described by Oliver it can be assumed that the advertising of the particular shop has been false. This initiative has a series of consequences – no matter whether damage has been actually caused to consumers or not. In accordance with the existing law, false advertising is prohibited since it can cause damages to the consumers – the punishment threatened for the specific offence is not depended on the existence of damage from it or not.15 The main legislative text referring to the false advertising is the 1968 Trade Prescriptions Act.16 On the other hand, the EC’s Sales Directive –in force in UK since 2002 – could be a particularly helpful legislative text for punishing the specific activity – false advertising. In the context of the above Directive misleading information provided through advertising is against the law since it can cause damages not only to consumers but also to the competitors.17 In accordance with the above, Oliver could report the specific event to the authorities in order for the relevant procedure – as described in the legal texts presented above – to begin. In other words, no claim for compensation could proceed – in regard to the events described by Oliver; only under the terms that Oliver could prove the damage caused to him by the company’s false advertising, a procedure for awarding this compensation to Oliver could start. Otherwise, such initiative would have no chance to succeed (it would be possible that Oliver would have to pay the bill of costs involved). However, the firm can be held liable for false advertising and it will not be able to avoid the consequences of the law in regard to the specific activity. (Words: 641 – including footnotes: 761) (In total: 1481 – including footnotes: 1951) Bibliography Adediran, P. (2002) A practical guide to business, law & the Internet. Kogan Page Publishers Carlan, P., Nored, L., Downey, R. (2010) An Introduction to Criminal Law. Jones & Bartlett Learning Clinard, M., Yeager, P. (2005) Corporate crime. Transaction Publishers Darrow, C., Baatz, S. (2009) Crime: Its Cause and Treatment. Kaplan Publishing Fisse, B., Braithwaite, J. (1993) Corporations, crime, and accountability. Theories of institutional design. Cambridge University Press Henry, S., Lanier, M. (2001) What is crime?: controversies over the nature of crime and what to do about it. Rowman & Littlefield Howells, G., Weatherill, S. (2005) Consumer protection law. Ashgate Publishing Law Commission of Canada (2005) What Is a Crime?: Defining Criminal Conduct in Contemporary Society. UBC Press Michalowski, R., Kramer, R. (2006) State-corporate crime: wrongdoing at the intersection of business and government. Rutgers University Press Osborne, D., Wernicke, S. (2003) Introduction to crime analysis: basic resources for criminal justice practice. Routledge Pearce, F., Snider, L. (1995) Corporate crime: contemporary debates. University of Toronto Press Simpson, S. (2002) Corporate crime, law, and social control. Cambridge University Press Wikstrom, P., Sampson, R. (2006) The explanation of crime: context, mechanisms, and development. Cambridge University Press Zagaris, B. (2010) International White Collar Crime: Cases and Materials. Cambridge University Press Legislation Companies Act 2006 Communications Act 2003 (c. 21) Corporation Tax Act 2010 Criminal Justice Act 2003 (c. 44) Enterprise Act 2002 (c. 40) Finance Act 2006 (c. 25) Open-Ended Investment Companies Regulations (Northern Ireland) 2004 No. 335 Taxation (International and Other Provisions) Act 2010 (c. 8) The Companies (Cross-Border Mergers) Regulations 2007 No. 2974 Tobacco Advertising and Promotion Act 2002 (c. 36) The Business Protection from Misleading Marketing Regulations 2008 No. 1276 The Consumer Protection from Unfair Trading Regulations 2008 No. 1277 Case Law Bank of Tokyo-Mitsubishi UFJ, Ltd & Anor v Baskan Gida Sanayi VE Pazarlama A.S. & Ors [2009] EWHC 1276 (Ch) (11 June 2009) British Airways Plc v. Ryanair Ltd [2000] EWHC Ch 55 (25th October, 2000) Digicel (St Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2010] EWHC 774 (Ch) (15 April 2010) Dimsey & Anor, R v [1999] EWCA Crim 1917 (7th July, 1999) El-Kurd & Ors, R v [2007] EWCA Crim 1888 (26 July 2007) Gallaher International Ltd v Tlais Enterprises Ltd (Rev 1) [2008] EWHC 804 (Comm) (18 April 2008) Gardner & Anor, R v [1997] EWCA Crim 960 (22nd April, 1997) Gazette Media Company Ltd. & Ors, R (on the application of) v Teeside Crown Court [2005] EWCA Crim 1983 (26 July 2005) Glatt, R. v [2006] EWCA Crim 605 (17 March 2006) CPS Nottinghamshire v Rose [2008] EWCA Crim 239 (21 February 2008) Grupo Torras SA & Ors v Sheikh Fahad & Ors [1999] EWHC 300 (Comm) (24 June 1999) Hashem v Shayif & Anor [2008] EWHC 2380 (Fam) (22 September 2008) Konamaneni & Ors v Rolls Royce Industrial Power (india) Ltd & Ors [2001] EWHC Ch 470 (20th December, 2001) Lexi Holdings Plc v Shaid Luqman & Ors [2007] EWHC 1508 (Ch) (02 July 2007) LOreal SA & Ors v Bellure NV & Ors [2007] EWCA Civ 968 (10 October 2007) Mahonia Ltd. v JP Morgan Chase Bank [2004] EWHC 1938 (Comm) (03 August 2004) Man Nutzfahrzeuge Ag & Ors v Freightliner Ltd. [2005] EWHC 2347 (Comm) (28 October 2005) Matias Rath BV & Anor, R (on the application of) v Independent Reviewer Of Advertising Standards Authority Ltd & Anor [2000] EWHC Admin 428 (6 December 2000) Morris & Ors v Bank of India [2004] EWHC 528 (Ch) (19 March 2004) O2 Holdings Ltd. & Anor v Hutchison 3g Ltd [2006] EWHC 534 (Ch) (23 March 2006) Secretary of State for Trade and Industry v Goldberg & Anor [2003] EWHC 2843 (Ch) (26 November 2003) Seager, R v [2009] EWCA Crim 1303 (26 June 2009) Smikline Beecham Plc v Advertising Standards Authority [2000] Staines & Anor, R v [1997] EWCA Crim 974 (24th April, 1997) Steel & Anor v McDonalds Corporation & Anor [1999] EWCA Civ 1144 (31 March 1999) Read More