Introduction to Criminal Law - Essay Example

Criminal Law The two basic elements that must be determined in establishing criminal liability are (a) actus reus and (b) mens rea. Actus Reus comprises the guilty act as well as all the circumstances and consequences required for the offence. In some cases, engaging in the act itself is an offence, for example, driving a mechanically propelled vehicle on the road.1 In other cases actus reus will be established only when it can be proved that the act in question caused a result that is prohibited. Engaging in the guilty act alone will not establish criminal liability, mens rea must also be shown. Mens rea is the guilty state of mind or the intent to commit the guilty act. The intention to commit a criminal act must be established, because in some instances, a physical act causes damage that is prohibited2, but unintentionally3, as a result of which it is not a deliberately inflicted damage4. A criminal act is one where a prohibited act is carried out with the deliberate intent to commit the act. Criminal law aims to function as a deterrent to crime and unacceptable social behavior, to provide retribution against the law breaker and ensure appropriate levels of accountability.5 If it is a business that is engaging in a criminal act, by intentionally causing damage to an individual, then criminal intent may be established. During the past three decades, there have been several incidents of crimes caused due to corporate negligence, where the provisions of the law have proved to be inadequate to deal with them, for example the case of P&O European Ferries.6 What action would constitute a crime? Glanville Williams observes that “a crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.”7 Lord Atkin in the case of Proprietary Articles Trade Association v Attorney general for Canada stated that the single common feature that will distinguish criminal acts is that “they are prohibited by the State and that those who commit them are punished.”8 Thus, the delineation of actions that would constitute criminal actions is in the hands of the State. The kind of conduct that a State might criminalize would generally be conduct that is so damaging or harmful to society that it cannot be left within the realm of private law, such as homicide or manslaughter. The passage of the Corporate Manslaughter and Corporate Homicide Act of 2007 is intended to be an effective deterrent against corporate crime. The difficulties in prosecuting a corporation have been set out by Lord Diplock, who summed up the corporation’s position in law as follows: “A corporation is an abstraction. It is incapable itself of doing any physical act or being in any state of mind.”9 As opposed to this however, Lord Hoffman in discussing corporate liability for criminal activity stated there is no such thing as a Company “of which one can meaningfully say that it can or cannot do something. There is in fact, no such thing as a company as such.”10 Ultimately crimes are committed by individuals and therefore human, moral agents are responsible for the commission of crimes and must be held accountable. On this basis, it is also individuals who would be most amenable to deterrence. However, the distinct legal personality of the corporation as an impersonal entity11 poses a problem in terms of allocation of specific individual responsibility. While the distinct legal personality of a Company allows corporate civil liability to flow from it, it was not earlier appreciated that a corporation might also commit unlawful homicide. Corporate criminal liability was not recognized by English courts12. Establishing mens rea was the problem in regard to corporations, since it was difficult to establish the necessary criminal mind set in the case of a corporation. In the case of a corporation, the kind of manslaughter violations that occur are the result of negligence or failure of the requisite duty of care that must be exercised on behalf of individuals/ employees working in risky situations, which often leads to their deaths. Therefore, establishing liability for such crimes has largely been a matter of regulation, falling under the purview of strict liability offences, where mens rea and the moral culpability for offenses cannot be effectively established, since individual liability cannot be pinned on to a corporation. It was Lord Denning in 1956, who finally outlined the “directing mind” theory, according to which the guilty minds of managers or directors could form the basis for establishing the guilt of the Company in crimes requiring the establishment of mens rea.13 The P&O case cited earlier resulted in an important legal principle emerging from the case – boardroom decisions and failures can, in principle, form the basis of liability for manslaughter if they were reckless ones and caused death.14 As a result, a court of law cannot necessarily disassociate the liability for manslaughter from corporations, rather the possibility of manslaughter liability must first be ruled out, since senior executives of the corporation have an obligation to protect members of the public from risk. (b) It does not appear that Aziz will have much scope to take any action against Jeryms Ltd, for failure to stock items at the advertised sale process. At the outset, it must be noted that an advertisement is not the equivalent of a contract. If a contract is to come into existence, it will require an offer, or a willingness to enter into a contract. This is opposed to invitations to treat, where a party is only inviting offers that he can choose to accept or reject. The position of advertisements in law is that they have been viewed as invitations to treat.15 Hence Jeryms Ltd had advertised goods on sale and these are only invitations to treat, for which he cannot be held contractually liable. In the case of Grainger v Gough16 a price list for wine had been advertised, but in rendering a judgment, Lord Herschell stated clearly that offering such a price is not necessarily a guarantee that unlimited quantities of wine will be supplied at the same price. The wine merchant would be faced with cumbersome legal obligations if that was the case, because his supplies of wine are not unlimited and he would be unable to continue to offer wine at that price if his stocks run out. This case in particular would apply in the case of Jeryms Ltd. It is at liberty to offer items on sale, and it is equally likely that those sale items may have been purchased by other customers. If Jeryms Ltd had displayed any sign that it intended to be bound by the offer, the Aziz could have possibly had remedy on the grounds that Jeryms had made a unilateral offer. In the case of Carlill v Carbolic Smoke Ball Co17the seller made a conditional offer and the Court held that he had shown an intent to be bound, hence contractual liability was established. But this is not the case with Jeryms Ltd. It is entirely possible that the advertised items could have been sold out, hence Aziz may have little scope to file action against the retailer. Q2. In forming a legally binding contract, the following elements are necessary: (a) An offer must be made, to show the willingness of the offerer to contract. A mere display of goods18 or an advertisement19 will not constitute an offer. It is only a unilateral advertisement open to all the world to accept that can be construed as an offer.20 (b) An offer made by one party must be matched by a final and unqualified acceptance of the terms of the offer. If the other party does not accept an offer as it is but offers terms of his own, then this will be a counter offer.21 (c) The acceptance must also be communicated to the offeror; it is only then that a contract comes into existence.22 Silence will not constitute acceptance.23 When an acceptance to an offer is sent by post, then acceptance will be deemed to have occurred on the date it is posted, despite any delays in receipt at the other end.24 But in those cases where there is an instant mode of communication used, sich as the telephone or fax, etc, then acceptance will be complete as soon as it is received.25 (d) The parties must have the intention to enter into legal relations; for instance an informal agreement between family members may not be deemed a contract26. When a business agreement is formulated, then there is an automatic presumption that the parties intended to enter into legal relations, hence the existence of a contract will be automatically assumed.27 (e) There must be some form of consideration that is paid. Consideration has been described in terms of benefit and detriment; for instance in the case of Currie v Misa it has been stated to be some “interest, profit or benefit accruing to the one party” with a corresponding “forbearance, detriment, loss or responsibility” undertaken by the other party28. Unless and until all of the above conditions are satisfied, the existence of a binding, legally enforceable contract cannot be established. (b) The general rule in performance of contracts is that in order to discharge their obligations, the parties are required to precisely perform all the terms of the contract. For example, in the case of Re Moore and Landauer29, a failure to specifically comply with the packaging requirements led to the other party repudiating the contract. In Shiva’s case also, this general rule of strict performance would generally apply for the entire duration of the contract, i.e, one year. Shiva may have some grounds on the basis of which he can avoid fulfilling his contractual obligations for the rest of the duration left. Firstly, if he has substantially performed most of the contract within the three months, except for some minor elements, he may be able to make recoveries against the contract to the extent that he has performed it30. Secondly, he also the option to contact the other party and if both of them together agree to terminate the contract, then Shiva will not have any further liability under the contract. Alternatively, they can agree on some variation in the contract and change or modify the terms such that they are more acceptable to Shiva under his current financial circumstances. Lastly, Shiva may also be able to consider asking for the contract to be terminated on the grounds of frustration. The doctrine of frustration allows the two parties to withdraw from a contract when due to a subsequent change in circumstances, it has become impossible to perform the contract.31 The altered conditions could be events the parties did not anticipate at the time of formulating the contract. For example, the personal incapacity of one of the parties has been held to be adequate grounds to establish frustration or an inability to perform the contract, thereby mandating a termination of the contract32. All of these measures may be helpful for Shiva to consider in eschewing the obligations under his contract and avaoiding being sued for breach of contract. Bibliography * Ashworth, A, 1999. “Principles of Criminal Law” Oxford: Oxford University Press * Bergman, David, 1990. “Corporate manslaughter: recklessness in the Boardroom” New Law Journal, 140 (6477) :1496 * Williams, Glanville, 1983. “Textbook of criminal law.” Stevens and Sons Cases cited: Balfour v Balfour [1919] 2 KB 571. Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. Currie v Misa (1875) LR 10 Ex 153 at 162 Condor v The Baron Knights [1966] 1 WLR 87 Dakin v Lee [1916] 1 KB 566 Entores v Miles Far East Corp. [1955] 2 All ER 493 FA Tamplin v Anglo-Mexican Petroleum [1916] 2 AC 397 Fisher v Bell [1960] 3 All ER 731 Felthouse v Bindley (1862) 11 CBNS 869. Grianger v Gough (Surveyor of Taxes) 1896 AC 325 Hill v Boxer (1958) 1 All ER 193 Household Fire Insurance Co. v Grant (1879) 4 Ex D 216 Hyde v Wrench (1840) 3 Beav 334 H.L.Bolton Co v T.J. Graham and Sons, 3 All ER 624 (CA 1956) In Re Sutton’s Hospital, 77 Eng. Rep. 937 (KB 1612) Leicester v Pearson (1952) 2 All ER 71 Meridan Global Funds management Asia Ltd v Securities Commission (1995) 2 AC 500 Partridge v Crittenden [1968] 2 All ER 421. Proprietary Articles Trade Association v Attorney general for Canada (1931) AC 310 Re Moore and Landauer [1921] 2 KB 519 Rose and Frank Co v Crompton Bros Ltd [1925] AC 445. R v P&O European Ferries Ltd, 93, Criminal Appellate Review 72 R v Quick (1973) 3 All ER 347 Solomon v Salomon & Co Ltd (1897) AC 22 Read More