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Corporate Criminal Liability
Corporate Criminal Liability
3rd Edition
Practice Area:  Criminal Law
ISBN:  9780414027589
Published by:  Sweet & Maxwell
Publication Date:  24 May 2013
Format:  Hardback
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This new edition of Corporate Criminal Liability is thoroughly revised, expanded and updated to guide to the criminal process from the perspective of the corporate defendant with a scholarly analysis of the principles of corporate liability. It discusses the impact of the Bribery Act 2010 as well as a Director’s obligations plus fiduciary obligations and the responsibility of corporate liability. It provides practical guidance in responding to restraint orders as well as sentecing and mitigation.

Furthermore Corporate Criminal Liability also:

  • Provides an detailed guide to Directors’ liability and Directors’ disqualification
  • Explores the ’doctrine of identification’ and special rules of attribution fixing a corporation with liability for crimes
  • Explains the court’s jurisdiction over companies and takes the reader step-by-step through the prosecution process from the issue of a summons to sentence and costs
  • Contains expanded and updated analysis of the impact of restraint and confiscation orders on companies including a detailed examination of ‘piercing the corporate veil’ 
  • Details analysis of FSMA and financial crime offences
  • Provides a practical guide to corporate ‘best practice’ 
  • Provides a guide to Corporate Manslaughter Act  2008 and considers Sentencing Guidelines
  • Fully analyses the impact of the Bribery Act 
  • Provides dedicated chapters on Companies and Insolvency Act offences
  • Discusses investigative powers, self-incrimination and ‘derivative use’
  • Updates law on Fraudulent Trading and False Accounting 
  • Discusses the important issue of corporations and Human Rights
  • Offers practical guidance on sentencing principles and practice relating to companies 
  • Details consideration of regulatory offences and defences
CONTENTS

Part I

• Principles of Liability
• Historical background
• Early development
• The doctrine of identification
• The principle of delegation

Part II

Directors’ Liability
o Civil Law
o ‘Lifting the corporate veil’
o Personal liability of director, manager or officer of the Company – Common Law
o Conspiracy
o Personal Liability of director, manager or officer of the Company – Statutory offences
o Consent, Connivance and neglect
o The company as victim

Part III

Corporations and Criminal Procedure

    Jurisdictions over corporations

  • Territorial Jurisdiction – General Rule
  • (a) the ‘last act’ or terminatory rule
  • Comity rule
  • Extensions of Jurisdiction – dishonesty, forgery and blackmail.
  • Conspiracy
  • Attempts 
  • Incitement
  • Extension of jurisdiction for specific offences
  • Aviation offences
  • Offences at Sea
  • Channel tunnel
  • Computer misuse
  • Customs and excise offences
  • European Union Tax offences
  • Manslaughter

Proceedings in criminal courts
o Commencement of proceedings
o Limitation of proceedings
o Institution of proceedings requiring particular consents
o Issue of summons
o Service of the summons
o Summonising the wrong defendant
o Representation at court
o Categorisation of offences by trial venue
o Summary only offences
o Offences triable either way
o Committal proceedings
o Voluntary Bill of Indictment
o Indictable-only offences
o Preliminary hearing
o Transfer of serious fraud cases
o Preparatory hearings
o Preparatory hearings in long or complex cases
o Interlocutory appeals
• Restraint, confiscation orders and asset recovery
o The criminal confiscation regime
o Restraint orders under Part 2 of the Proceeds of Crime Act 2002
o Restraint orders and corporations
o Piercing the corporate veil
o Tipping-off and other offences
o Civil Recovery
o The statutory scheme under Part 5 of the Proceeds of Crime Act 2002
o Receivers
o Third party rights
o Recovery orders
• Sentencing Corporate Defendants
o Factual basis of sentence
o Taking offences into consideration
o Sentencing venue
o Types of disposal
o Fines –general principles
o Means of the offender
o Levels of fine
o Relevant sentencing features
? (2) Compensation orders
? (3) Restitution orders
? (4) Absolute and conditional discharge
? (5) Deferred sentence
? (6) Remedial orders
? (7) Forfeiture orders
? (8) Disqualification of company directors
o Sentencing corporate defendants in other jurisdictions
• Costs
o Defendants’ costs – from central funds
o Appealing against costs orders
o The exercise of the discretion
o Defendants’ costs from the prosecution
o Prosecution costs – from central funds
o Against a defendant
o Costs awarded against legal representatives
o Corporation funding legal costs of individuals

Part IV

Corporations and Human Rights
o General principles of application
? Margin of appreciation
? Compatibility
? Proportionality
o The definition of a criminal charge
o The presumption of innocence and reverse burdens
o Strict liability
o Legal and evidential burdens on the defendant
o The impact of the Human Rights Act 1998
o Reverse burdens in regulatory offences
o Privilege against self-incrimination
o Brown v Stott
o Derivative use
o Corporate defendants and ‘due process’ rights
o Application of other Convention Rights to corporations
o No retroactivity
o Certainty
o Fist Protocol : Article 1

Part V

Specific Offences
• Corporate manslaughter
o Historical position
o Attorney General’s reference No.2 of 1999
o Law Commission’s report no.237: Legislating the criminal code: Involuntary Manslaughter
o The ambit of the commission
o The options for extending liability
o The Commission’s recommendations – corporate manslaughter
o The individual offences of Unintentional Killing  - Reckless killing
o Killing by gross carelessness
o The Government’s proposals: response to the Law Commission
o Potential defendants
o Liability of individuals
o Insolvency or dissolution of companies
o Liability within groups of companies
o Who should prosecute
o Territorial jurisdiction
o On conviction: individual disqualification
o Remedial action
o Conclusion
• Companies Act offences
o General provisions
o Consent, connivance or neglect
o ‘Company’
o ‘Body corporate’ and ‘corporation’
o ‘Subsidiary’, ‘holding company’ and ‘wholly-owned subsidiary’
o Destroying, mutilating or falsifying documents – s.450
o Failing to produce required documents or explanations – s.447
o Furnishing false information – s.451
o Using company’s money to acquire shares directly or indirectly
o Directors’ loans
o Accounting and audit offences
• Insolvency
o Summary proceedings: where and when
o Criminal Liability of individuals
o Consent, connivance and neglect
o Fraud etc. In anticipation of winding up – s.206
o Transactions in fraud of creditors – s.207
o Misconduct in course of winding up - .s208
o Falsification of company’s books  - .s.209
o Material omissions from statement relating to company’s affairs – s.210
o False representation to creditors – s.211
o Restriction on re-use of company names – s.216
o Due to co-operate with office holder in a winding up
o Moratorium offences
• Financial Services & Markets Act 2000
o Regulation
o Financial provision
o False claims to be exempt from the general prohibition
o Listing particulars
o Publication of prospectus
o Failure to comply with requirements
o Failure to notify changes of control
o Consumer Credit act business
o Providing misleading information
o Consent, connivance and neglect
o Market rigging, misleading statements and practice
o Defences
o Disclosure of information
o Insider dealing
o Market abuse
• Fraudulent trading
o S.458 Companies Act 1985 – fraudulent trading
o Carrying on of business
o Fraudulent intent
o Fraud on creditors
o Any fraudulent purpose
o Party to carrying on business
o Sentence
• False accounting
o Theft Act 1968 s.17
o Dishonesty
o With a view to gain for himself or another
o With intent to cause loss
o Any account of  record or document made or required for any accounting purpose
o False statements by company directors and officers – s.19 Theft Act 1968
o Participation by undischarged bankrupt in corporate affairs
• Corruption
o Introduction
o Bribery and corruption at common law
o The public bodies corrupt practices act 1889
o Public Body
o Inducements and rewards
o Corruptly
o Corruption of Agents: the prevention of corruption act 1906
o Agent
o&nb

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