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9780406950062

Rethinking Corporate Crime

by
  • ISBN13:

    9780406950062

  • ISBN10:

    0406950067

  • Format: Paperback
  • Copyright: 2004-06-21
  • Publisher: Lexis Nexis
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Summary

This unique work provides a detailed critique of the current criminal law system as it applies to corporate wrongdoing. It assesses the potential for the legal control of corporate criminality as informed by insights gleaned from an understanding of why such crimes occur. The authors also advance the theory that such crimes should be viewed as a failure by the company to manage its business operations and a failure to have an effective risk management system in place. Corporate crime features on various undergraduate and postgraduate criminology and criminal justice courses across the country, which makes this specialist text highly appropriate for law and criminology students. It is also an insightful text appropriate for a wider academic audience and discusses the legal, sociological and criminological dimensions of corporate crime in detail. Corporate criminal responsibility is a very contemporary topic, covered in fine detail within this work.

Table of Contents

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

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