Rethinking Corporate Crime

Preface v Table of statutes xv List of cases xix Understanding the nature and causes of corporate crime 1(41) White-collar and corporate crime 1(2) An overview of the literature 3(8) The formative years 3(3) New directions in research 6(2) What have we learned? 8(3) Building the foundations 11(3) The roots of corporate criminality 14(12) Social, economic and cultural factors 15(2) The nature and structure of organisations 17(1) Intent, rationality and competence 18(3) Defence mechanisms and techniques of dissociation 21(2) Crime-facilitative and crime-coercive industries 23(2) Conclusions 25(1) Parameters and case studies 26(9) Waste disposal and the TCR case: a magnet for criminals 27(1) Road transport and the Roy Bowles case: eyes wide shut to danger 28(2) Guinness: a conspiracy of high flyers 30(1) The Southall rail crash: human error and systemic failure in a world of deregulation 31(4) Preview: corporate crime and the law 35(7) Corporate criminality I: Imputed liability 42(36) Introduction 42(4) Companies and the criminal law 46(7) Are companies fit subjects for the criminal law? 46(4) Is corporate criminal liability needed? 50(3) Corporate criminal liability: the formative stages 53(2) Vicarious corporate criminal liability 55(4) The `identification' doctrine 59(11) Rethinking the basis of imputed corporate criminal liability: the company as accessory 70(5) Conclusions 75(3) Corporate criminality II: Organisational fault 78(37) The picture so far 78(4) Aggregated fault 82(4) Organisational fault 86(14) Mens rea 87(1) Intention 87(2) Knowledge 89(1) Recklessness 90(2) Gross negligence 92(2) Negligence and strict liability 94(3) Actus reus 97(3) A defence of due diligence 100(2) Legislative models 102(11) An offence of corporate killing 103(5) Lessons from Italy 108(5) Conclusions 113(2) Corporate criminality III: Endangerment offences 115(31) Introduction 115(1) The relevance of results in criminal law 116(7) Results and corporate crime 123(6) The assessment of risk 124(3) A matter of timing 127(2) Regulatory offences 129(2) Endangerment offences 131(5) Remedial orders and other sanctions 136(2) Accessories to endangerment 138(2) The continuing relevance of harm 140(4) Criminalisation 141(1) Investigations 141(1) Prosecutorial discretion 142(1) Evidence 143(1) Sentencing 143(1) Conclusions 144(2) Corporate crime in an era of globalisation 146(33) The nature of the problem 146(4) Liability of a parent company for crimes of its subsidiaries 150(6) Vicarious liability 151(2) Complicity 153(2) Conspiracy 155(1) Prosecutions in the host state of the subsidiary 156(6) Prosecuting a parent company, its directors and its officers in the host state 157(3) Prosecuting the subsidiary in the host state 160(2) Prosecutions in an international forum 162(7) Prosecuting an MNE or its subsidiary in an international criminal forum 163(3) Holding states accountable for human rights abuses perpetrated by MNEs 166(3) Prosecuting a parent company in its home state 169(9) Jurisdiction 169(1) The `active personality' principle 169(1) Universal jurisdiction 170(2) A violation of home state law? 172(6) Conclusions 178(1) When a company is on trial: Rules of evidence and procedure 179(35) Introduction 179(3) The choice of trier of fact: are juries appropriate? 182(9) The Roskill Report 182(4) The Auld Report 186(1) `Justice for All' 187(2) Crimes of corporate violence 189(2) Rules of evidence 191(9) The hearsay rule and documentary evidence 191(5) The privilege against self-incrimination/right to silence 196(4) The burden and standard of proof 200(4) Due diligence 204(6) The due diligence defence under English law 205(3) Due diligence in Italy and the United States 208(2) The impact of the Human Rights Act 1998 210(3) Conclusion 213(1) Sentencing and sanctions 214(39) Introduction 214(2) Theory 216(5) Theories of punishment 216(3) The applicability of the theories to companies 219(2) an arsenal of sanctions 221(24) Fines and monetary sanctions 221(1) The case for monetary sanctions 221(4) Determining the amount of a fine -- the Howe criteria 225(3) Differential fines 228(3) Are fines really the answer? 231(2) Community service orders 233(3) Reputation-orientated sanctions 236(3) Restraint-orientated sanctions 239(3) Remedial orders 242(3) An inclusive package of sanctions 245(5) The Council of Europe recommendations 245(2) The federal guidelines for organisational offenders 247(3) Procedures in sentencing 250(2) Conclusions 252(1) Individual liability 253(30) Introduction: structural complexity 253(5) Liability of ordinary employees 258(5) Liability of senior supervisory personnel 263(4) Liability of directors and officers 267(14) Legal responsibility 268(5) Sanctions 273(1) Imprisonment 274(4) Disqualification 278(2) Community service 280(1) Combinative sanctions 281(1) Conclusions: individual and organisation 281(2) Policing' companies: Dilemmas of regulation 283(32) Introduction and historical background 283(3) Regulatory agencies 286(6) Public, private and self-appointed regulators: an overview 288(2) The role of the government 290(2) Compliance and deterrence strategies 292(4) Inspectorates and special investigatory agencies 296(7) A conventional inspectorate: the Health and Safety Executive 296(5) A special inter-disciplinary, investigatory agency: the Serious Fraud Office 301(2) The role of the police 303(2) Regulation in the United States 305(7) The Food and Drug Administration 306(3) The Securities and Exchange Commission 309(3) the Financial Services Authority 312(2) Conclusions 314(1) Self-regulation and the socially responsible company 315(32) Introduction 315(1) Collective self-regulation 316(6) Individualised self-regulation 322(14) Advantages 322(2) A model 324(2) In the event of a violation 326(3) Pitfalls 329(3) Legal and other effects 332(4) Corporate governance and self-regulation 336(6) Beyond compliance: the socially responsible company 342(5) Bibliography 347(22) Index 369