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Research Proposal and Plan of Work - Tornike Khakhishvili

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Research Proposal and Plan of Work
Tornike Khakhishvili
1) The Research Title
Corporate Criminal Liability in the UK
2) Rationale for Research Topic
Given the nature of modern industrial growth, where capitalism has an increasingly critical impact
on civilization, the necessity to hold companies accountable for the crimes they are committing has
become crucial, both on domestic and international levels. The fact that corporate crime always
existed is not something new, and it has obliged the Law makers with the need to make sure that
corporations are not able to avoid responsibilities when they are engaged in an unlawful conduct,
regardless did it happen intentionally or by accident (1). Having said that, traditionally criminal
accountability was always based on individual principles; and this has caused significant complications
holding companies accountable for their crimes (2). When such principles are adopted to collective
entities, variety of issues are emerged. Many different approaches have been used to held companies
liable for criminal activities, yet there is debate whether they have demonstrated positive influence in
limiting and punishing such activities. Thus, it is very important to study explore how the Law in the
UK deals with criminal conduct committed by corporations, and whether there could there be further
changes made to hold companies accountable. To that end, this develops the principal aim of the
dissertation.
History has demonstrated that punishing companies for their unlawful conduct does not
server well with traditional principles of criminal law (3). Therefore, it is crucial to examine the
reasonings behind that and how can it be resolved. The accepted legal notion during the 16th and 17th
centuries was that “a corporation is not indictable, but the particular members of it are” (4). Ancient
efforts to hold corporations liable for their wrongdoings were followed by numbers of practical and
theoretical barriers; to put it in other words, the notion of basic liability and moral obligations could
not apply on companies which is necessary to prove mens rea (5). While from more practical angle,
the issue is that the corporations are not physically capable of presenting at court, and blaming
unlawful activities to organizations meant that it was particularly challenging to hold them accountable
(6). It was in late 19th century when the approach towards Company Law has been shifted, and Law
makes began developing consensus that something had to be done in order to held companies
accountable for their criminal conduct (7). Courts in the UK started to actively show willingness, to
hold liability on corporations for criminal conducts such as public nuisance. Followed by progressive
growth of criminal liabilities, to the level where companies were punished for more simple violations
such as nonfeasance (8).
As a result of companies growing and its impact on society, has increased the willingness to
regulate corporations and hold them liable for violations of conduct (9). To the end of the 19th century,
Research Proposal and Plan of Work
Tornike Khakhishvili
the overall picture was clearer than ever before that companies were more than capable, and should
be held liable for the crimes they have committed, and punished by fines. Therefore, historical
overview shows that; two significant factors have motivated the imposition of accountability over
companies for unlawful activities (10). Huge attention was contributed by media towards corporate
disasters, big part of it caused by negligence, resulted thousands of deaths every year (11). On the
other hand, the employment related causalities were inappropriately punished, demonstrating the
lack of ability to hold organizations accountable applying traditional principles of criminal law (12).
Therefore, it is necessary to explore how could companies be held accountable for criminal activities,
should individual collective responsibility be employed, and what else could have done to improve
those liabilities for criminal conduct.
3) Proposed Methodology
This dissertation will mainly be based on qualitative data, employing primary sources such as
legislations and case law, as well as secondary data such as academic articles, journals and government
reports. The current law, and related cases will be critically examined in order to underline how
unlawful accountability is imposed, as well as principles emphasizing it. Followed by critical analysis of
the Law, presented through various existing literature and textbooks. With that, the dissertation will
be supported to equally highlight arguments in favor of collective and individual responsibility. Using
primary and secondary resources will make it possible to challenge outlined arguments from the paper,
and will try to contribute for further suggestions.
4) Provisional Chapter Headings
I.
Introduction
In this chapter, the dissertation will talk about the reasons to why this topic is relevant and will
highlight the numbers of issues related to the main research question. The introduction will
also include a short version of the research structure, and the main arguments which will later
be discussed in more details.
II.
Corporate Liability
In this part of the work, a history overview of corporate liability will be discussed. Particularly
this chapter will analyze the historical developments of corporate liability throughout the
years, investigating the transformation among the identification and the aggregation
principles. Various examples will be used as supporting evidence from the case law, which will
demonstrate court’ judgment of these doctrines and will enable the dissertation to critically
analyze criminal law’s approach towards holding the companies accountable.
Research Proposal and Plan of Work
Tornike Khakhishvili
III.
Approach in the UK
In this chapter current approach towards corporate liability will be critically analyzed
domestically in the UK. The biggest attention will be concentrated analyzing corporate
manslaughter under the “Corporate Manslaughter and Corporate Homicide Act
2007”.
On the other hand, this chapter will also talk about corporate fraud under the “Fraud
Act 2006” as well as the “Companies Act 2006”. Such analysis will enable the
dissertation to clarify whether individual or collective accountability is practiced under
the modern regime.
IV.
Individual and Collective Accountability
This chapter of the dissertation will touch the issues related to corporate criminal conducts in
more comprehensive detail. Which should enable more critical examination whether
individual and collective accountability should be applied towards companies. The benefits
and disadvantages of both forms of accountability will be examined to demonstrate which is
best suitable approach to corporate crime.
V.
Proposals for Reform
This part will attempt to make various proposals for reform, based on the arguments made
through the dissertation. Particularly, it will talk about the ways how can current system be
improved to become more effective holding corporate crime accountable.
VI.
Conclusion
To the final part, the dissertation will put together all the arguments and issues mentioned in
the main text. Followed by final conclusions developed over throughout the dissertation.
5) Outline Survey of Literature
Many scholars have given much academic attention to this matter, as well as constant
willingness by the courts in the UK to improve upon how the law can be improved to hold
companies liable for their criminal conduct. The common approach has been that companies are
not intellectual creatures; therefore, they are not able to think; with that court have avoided this
issue by trying to find a responsible person within a company who directs the organization’s will
and behavior (13). Yet it must be noted that the identification doctrine showed to be ineffective
when dealing with large corporations, this is due to the fact that decisions in the large companies
are typically made by numbers of different individuals rather than a single person (14). In those
situations, it is very hard to find a right person who could be accountable for an incident, meaning
that a one person can not be accused. For instance, three people has breached an ordinary
Research Proposal and Plan of Work
Tornike Khakhishvili
standard of negligence within the company, which put together, has caused in a breakdown of
safety check system and was resulted in death of a customer or employee. Because it was
combination of mistakes made by multiple people, none of those three individuals could be
convicted of man slaughtering. Employees of big organizations, do not normally take decisions of
a scale that can have vital crucial impact over someone’s life and because of that it is very hard to
hold them responsible (15).
On the other hand, a different method is offering tort law, which implies to identify the
problem that disturbed the identification principle. According to tort law, the unlawful elements
of actus reus and mens rea can be related to an organization, allowing it to be held liable for their
wrongdoings as a collective entity. This identification doctrine has become very commonly used
approach imposing corporate liability, especially for the cases where manslaughter was resulted
by negligence of the rules. However, it must be said that this strict manner was only applied by the
courts during most severe cases (17). The doctrine was put under lot of criticism, which later ended
in expanding as the act of the company. Thus, it became important for individuals to have
organization’s authority to make any unexpected decisions. According to Clarkson, it is problematic
and he argues that it ‘still requires an individual to be identified within the corporate structure
whose acts and knowledge can be attributed to the company’ (19). On the other hand, there are
scholars arguing that while organizations are considered just as "metaphysical entities"; it is still
possible to hold them accountable if their operational methods demonstrate the essential dosage
of mens rea (20). All things considered; it can be argued that using approach of aggregation
doctrine can help the problems emerged by the identification doctrine (22). Establishing good
alternative approach which is currently used in the courts of the UK.
The inability of common law to approach to company liability in many large-scale disasters,
has made huge influence towards creation of the Corporate Manslaughter and Corporate
Homicide Act 2007 (24). It was supported by Home Office that there was a necessity to ‘restore
public confidence that companies responsible for the loss of life can properly be held accountable
in law’. The 2007 Act eliminates the common law offence of corporate manslaughter by Sec 20 of
the Act. According to the act, the statutory offence of corporate manslaughter is established, and
“the offence of gross negligence manslaughter is abolished insofar as it relates to companies and
other organizations” (25). Accountable companies could be required to pay fines, or could be
punished by issuing a remedial publicity order, demonstrating the Act’s revived and more modern
approach to deal with corporate crime. However, the act has actively been criticized by law
experts, mostly due to the fact that it has not defined what a non-senior means, and which
employees are included under this title (32). Bebb Argues that, “the legal debate as to whether a
Research Proposal and Plan of Work
Tornike Khakhishvili
defendant is so senior as to embody the company will be replaced by a similar debate as to
whether or not the defendants are senior managers…an issue that should be relevant to
sentencing but not liability” (32).
Academic literature included in this proposal has shown that there are some improvements in
the current system of the UK, however, issues remain and require further reform. Therefore, it is
necessary to study corporate liability from many more different perspectives, including different
types of criminal conduct such are environmental crimes, fraud and manslaughter.
6) Plan of Work
Plan
General reading around the topic
Formulating a research question
Sep
Oct
No
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More specific background reading
✔
Drafting the literature review
✔
Selecting the methodological approach
✔
Data collection
Data analysis
Editing work
Final tidying up and handing in
Legislation
Corporate Manslaughter and Corporate Homicide Act 2007
Companies Act 2006
Fraud Act 2006
Footnotes
(1) C Wells, Corporations and Criminal Responsibility (2nd edn, OUP 2001) 112; K Hawkins & J
Thomas, Enforcing Regulation (Kluer-Nihjoff 1994) 58-59.
(2) A Ashworth, Principles of Criminal Law (6th edn, OUP 2009) 72.
(3) LH Leigh, The Criminal Liability of Corporations in English Law (Littlehampton Book Services 1969)
Research Proposal and Plan of Work
Tornike Khakhishvili
108-111.
(4) Anonymous Case (No. 935) 88 ER 1518, KB 1701, Lord Holt, (183).
(5) VS Khanna, ‘Corporate Criminal Liability: What Purpose does it Serve?’ (1996) 109 HLR 7, 10.
(6) P Harris, An Introduction to the Law (Cambridge University Press 2008) 59.
(7) H Hansmann & R Kraakman, ‘The End of History for Corporate Law’ (2000) 89 GLJ 439, 441.
(8) R v Birmingham and Gloucester Railway (1842) 3 QB 223.
(9) VS Khanna, ‘Corporate Criminal Liability: What Purpose does it Serve?’ (1996) 109 HLR 7, 16.
(10) JA Erikson, ‘The Effect of Corporate Culture on Injury and Illness Rates within the Organisations’
(1994) 55 DAI 6, 9.
(11) CMV Clarkson, ‘Kicking Corporate Bodies and Damning their souls’ (1996) 59 MLR 4, 87.
Bibliography
Carrington & Hogg (2002) Critical Criminology: Issues, debates, challenges Devon:Willan Publishing
Crawford, A (1998) Crime prevention and Community Safety Essex: Pearson Education
Hughes, G (1996) Understanding Crime Prevention Buckingham: OUP
Lea & Young (1984) What is to be done about Law & Order London: Pluto Press
Maguire et al (1997) Oxford Handbook of Criminology Oxford: OUP
McLaughlin & The Sage Dictionary of Criminology Muncie (2006) London: Sage
Swale, J (2007) Sociology of Crime and Deviance Oxfordshire: Hodder Education
Taylor, Walton & Young (1973) The New Criminology London: Routledge
Vold et al (2002) Theoretical Criminology Oxford: OUP
Williams, K (2007) Textbook on Criminology Oxford: OUP
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