Research Korner: Law Case Study Sample

Plea Bargain

Is the Adversarial Process Fair?               The adversarial process in the US court system refers to the reliance upon the skills of the advocates who are representing the cause of their clients in an ongoing case to determine the truth (Anders v California (1967); United States v Cronic 1984). This system is differentiated from the inquisitorial system where a judge or group of judges conducts the investigation of the case. In the adversarial process, judges play the role of ensuring the application of due process such as deciding questions of admissibility of evidence and achievement of justice. ( 1977)   There are two significant ways of differentiating the adversarial from the inquisitorial process. First aspect of differentiation is the process following the admission of guilt of the defendant. In an adversarial process, the case proceeds to sentencing after the admission of guilt because is no longer any controversy to be settled. However, the process does not work in case of false confession so that in most states, the courts mandates or allows the defendant to have allocution. In the inquisitorial system, the confession is included as evidence but does not remove the requirement of case presentation by the prosecution. In the adversarial system, plea bargain is allowed and many cases before the courts have been determined using the plea bargain. Second aspect of differentiation is the rules of evidence. Since evidence in the adversarial system is deemed presented to laymen the rules on evidence are strict when compared to the inquisitorial evidence when the evidence is presented to jurists with the ability to distinguish the merit of evidence. The admissibility of hearsay is strictly considered in an adversarial process relative to an inquisitorial process. (1977)               In criminal cases governed by the adversarial process, the presence of counsel is inevitable (Strickland v Washington 1984; Penson v Ohio 1988). However, representation by counsel was only declared by the US Supreme Court as a right in 1963 through Gideon v Wainwright. In this case, the court held that courts are mandated to by the Sixth and Fourteenth Amendments to provide counsel to defendants in criminal cases without the financial capacity to acquire legal services. This decision enhanced the adversarial process by ensuring that all defendants in criminal cases have lawyers to advocate their cause and rights in court.               Reliance upon the advocacy skills of lawyers in the adversarial process gives rise to several issues hinging upon the fairness of the process. The first issue is the lawyer’s possible manipulation of truth by advising a client not to testify and provide evidence. In a criminal case, the defendant has the option to choose whether to testify or not. In case, the defendant chooses to testify, his testimony is subject to cross-examination with the possibility of being declared guilty of perjury in case of any validated lies. Since, defendants may not have the proper skills to make the decision lawyers influence their decision. In case putting the defendant on the stand would be detrimental to him, the lawyer would invoke the defendant’s right not to testify preventing the presentation of possibly self-incriminating evidence.               Another issue is the possibility that a favourable judgment may be obtained only due to the personal appeal of the lawyer and not based on evidence. Juries, despite their duty to be unbiased and decide based on the weight of evidence, form impressions of the parties to the case and their respective lawyers. A charismatic lawyer would likely have a captive audience with the jury compared to a less or non-charismatic adversarial opponent. This offers an important issue in the delivery of justice.                  Still another issue is that the adversarial process is akin to ancient systems of discerning the truth such as trial by ordeal because the basis of deciding the case depends upon the persuasiveness of the parties and their advocates to their cause. The adversarial process is considered as a display of rhetoric prowess among lawyers with little weight given to the evidence presented.               Despite these issues, the adversarial process is fair because it allows the parties the freedom to settle the case amicably through plea bargaining giving the defendant to choose a course of action. Concurrently, it is also fair because the state is not given any room to develop biases against the defendant because of the protection given by the Fifth Amendment to defendants in a plea bargain by preventing the judge and jury from developing any negative notions against the defendant. In relation to the role of counsel, the presumption is of course their diligent performance of their duty but the law does not hesitate to sanction any lawyer proven to have erred in his legal duties.

Plea Bargain

Is the Adversarial Process Fair? The adversarial process in the US court system refers to the reliance upon the skills ...

Criminal Law

INTRODUCTION The common foundation for entailing liability in criminal law is that the defendant have got to be attested to have carried out a guilty action at the same time as possessing a guilty state of mind. The physical components are jointly labeled the actus reus and the supplementary mental condition is labeled as the mens rea. It is the basic responsibility of the prosecution to establish both of these components of the offence to the contentment of the judge or jury beyond reasonable doubt. Without such evidence the defendant will be exonerated. Furthermore, the prosecution is required to establish that the defendant carried out the actus reus whilst in a particular mental condition. The mens rea essential prior to an individual could be condemned of a crime is indicated in the characterization of every crime. There are several states of mind which independently or jointly can make up the needed mens rea for a criminal offence. These include intention, recklessness and negligence. From time to time, the characterization of a criminal offence will make it apparent which of these mental conditions is suitable, however occasionally court judgments explicate the requirements of the description more specifically. This paper intends to discuss the connection of mens rea and actus reus in a criminal offence. The discussions presented in this paper will be based on actual cases where these common law doctrines are provided.     ACTUS REUS An actus reus is made of more than merely an action. It similarly takes account of whatever conditions and outcomes are acknowledged for legal responsibility for the crime under consideration. In other words, it consists of all the components of an offence except the mental component. Crimes can be separated into a couple of classes. Initially, there are conduct crimes where the actus reus is the illegal and illicit behavior itself. For instance, the actus reus of the offence of reckless driving is merely driving a mechanically driven motor vehicle on a street or other public place. No damage or outcome of that reckless driving is required be recognized. The second kind is deemed as result crimes where the actus reus of the crime needs evidence that the demeanor brought about an illegal and illicit consequence or end result. For instance, the actus reus of the offence of criminal damage is that possessions owned by another individual have to be ruined or damaged.  The actus reus have to be voluntary             The defendant’s conduct have to be voluntary or unreservedly resolved if he is to bring upon himself liability. It may possibly be involuntary for various causes. The following represents these causes.        Automatism Automatism takes place where the defendant carries out a physical action but is oblivious of what he is carrying out, or is not on top of his acts, on account of several factor external of the defendant. (R v Quick [1973] 3 All ER 347)  Reflex Actions Occasionally individuals can react to something with an impulsive reflex action over which they have no direct power. Even though, to some extent, different this is occasionally categorized as a kind of automatism. The characteristic case in point is that provided in Hill v Baxter [1958] 1 All ER 193, of somebody being stung by a multitude of bees while driving an automobile, and being unable to control the vehicle.  Physical Force The behavior may possibly be involuntary in that it is physically enforced by someone else, in which instance there will be an absence of actus reus. (Leicester v Pearson [1952] 2 All ER 71)  "State of Affairs" Cases One collection of cases which cannot be argued in the context of voluntary actions is frequently denoted as the "state of affairs" suits. These offences are characterized not in the context of the defendant carrying out a constructive action however consisting in the defendant being found, being in control or being in control. In a number of such suits all the prosecution is required to establish are the subsistence of the factual conditions which make up the crime - the subsistence of the state of affairs. (R v Larsonneur (1933) 24 Cr App R 74) Omissions There is an issue whether a person can be deemed criminally responsible for a failure to do something. The common rule is that there can be no legal responsibility for a failure to do something, except at the instance of the failure to act, the defendant was underneath a legal responsibility to seize constructive action unless a decree distinctively so grants, or the common law obliges a responsibility upon an individual to take action in a specific manner towards another, a measly oversight or omission to take action could not bring about criminal liability. (R v Miller [1983] 1 All ER 978.) The dissimilarity involving positive actions and omissions was emphasized in the Bland case [1993] 1 All ER 821, where the House of Lords decidied that euthanasia through positive actions to terminate a patient's existence, like controlling a drug to cause his demise, is illegal.  Nevertheless, retreating or ceasing medical treatment, as well as artificial nourishment, from an insensate patient with no expectation of recuperation when it was established that the outcome would be that the patient would in next to no time pass away, is legal if it was in the patient's welfare not to extend his/her life. A positive duty to take action subsists such as responsibility being caused by statute. Legal responsibility for failure to take action will be forced where the defendant can be confirmed to have been under a statutory obligation to acquire positive action. (Greener v DPP (1996) The Times, Feb 15 1996) An additional is a duty based on a contract. Where an individual is under a positive responsibility to take action for the reason of his commitments under a contract, his failure to carry out the contractual responsibility under consideration can structure the foundation of criminal liability. (R v Pittwood (1902) 19 TLR 37) A third is public duty. An individual in a public office may possibly be under a public duty to look after others. (R v Dytham [1979] 3 All ER 641) Correspondingly, there is the voluntary supposition of responsibility or dependence. There is a common law duty of care where there is a connection of dependence involving defendant and victim. Therefore if someone willingly presumes accountability for another individual then they similarly presume the positive duty to take action act for the general wellbeing of that individual and may possibly be legally responsible for omissions which prove deadly. (R v Stone and Dobinson [1977] 2 All ER 341) And finally, there is the duty by reason of the defendant's previous behavior. If the defendant by chance consigns an action that brings about harm, and later becomes conscious of the hazard he has formed, there begins a responsibility to act rationally to forestall that hazard. (R v Miller [1983] 1 All ER 978)      Causation             When the characterization of an actus reus needs the incidence of specific outcomes, the prosecution have to establish that it was the defendant's behavior which triggered those outcomes to take place. There are a couple of kinds of causation. One is the causation in fact, in which the "But For" experiment is employed.  (R v White [1910] 2 KB 124) Another is the causation in law, for which, for instance in homicide lawsuits, the defendant's actions have to be the working and considerable reason and grounds of fatality.  (R v Smith [1959] 2 All ER 193)   MENS REA Intention             Direct and Oblique Intent In the context of law there are a couple of kinds of intention. Direct intent is the characteristic condition where the outcomes of an individual's actions are preferred. Oblique intent, also recognized as foresight intent, implies the condition where the outcome is anticipated by the defendant as practically certain, even though it is not preferred for its own sake, and the defendant carries on with his acts at any rate. (R v Moloney 1985) To necessitating evidence that it was the defendant's intention to make happen a specific outcome may possibly entail placing an extremely serious evidential burden on the prosecution. Not unexpectedly, provided the above illustration, criminal law usually simply needs evidence of oblique intent (ie, foresight intent) in place of direct intent.             Intention Anchored on Foresight of Consequences The courts have affirmed that foresight of outcomes can merely be proof of intention if the defendant is aware that those outcomes would undeniably come about. Therefore, it is not enough that the defendant simply anticipated a likelihood of a certain incidence. At one instance, DPP v Smith [1961] AC 290, was authority for the perspective that an individual anticipated and anticipated the natural and likely outcomes of his actions. As a result, where foresight is needed to be recognized an individual is not to be deemed as meaning the natural and likely outcomes of his actions basically for the reason that they were natural and likely, even though a jury may possibly deduce that from observing all the facts. The test is consequently subjective and a jury is to come to a decision what the defendant's intention was from bearing in mind all the proof. The connection involving foresight and meaning was deemed by the House of Lords in Hyam v DPP [1975] AC 55. It is imperative to indicate that foresight of the outcomes is not identical as intention but merely proof of intention. (R v Scalley [1995] Crim LR 504) The justification of prescience of the outcomes in Hancock and Shankland and the Nedrick course, where suitable, are pertinent to all crimes and not only murder. A court or jury may similarly deduce that an outcome is anticipated, nonetheless it is not preferred, when the outcome is an almost positive result of the action, and the defendant is aware that it is a practically particular outcome. Recklessness Recklessness is the acquisition of an inexcusable risk. Nevertheless, two dissimilar tests have been created by the courts, the consequence of which is that recklessness now has a couple of unlike legal connotations which relate to dissimilar offences. The initial test for recklessness was subjective, ie the defendant is aware of the risk, is keen to deal with it and deals with it intentionally. The subject that has to be posed is whether the risk in the defendant's mind at the instance the offence was being carried out. This test was recognized in R v Cunningham [1957] 2 QB 396. The second test for recklessness is objective. Specifically, the risk has to be understandable to the reasonable individual, in that any reasonable individual would have acknowledged it if he had reflected about it. An individual is reckless in the new broader context when he carries out an act which generates an understandable risk, and, when carrying out the action, he has either granted no consideration to the likelihood of such a risk taking place or he acknowledged that a little risk subsisted, but carried on to put up with it. This test was recognized in MPC v Caldwell [1982] AC 341. The risk has to be understandable to the sensibly prudent individual. It need not be understandable to the defendant. (Elliott v C [1983] 1 WLR 939) The individual who pauses to reflect will still be legally responsible if he acknowledged that there was some risk. (Chief Constable of Avon v Shimmen (1987) 84 Cr App R 7)  Negligence Negligence consists of falling below the standard of the ordinary reasonable person. The test is objective, based on the hypothetical person, and involves the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do. It does not matter that the defendant was unaware that something dangerous might happen, if the "reasonable person" would have realised the risk, and taken steps to avoid it. (McCrone v Riding [1938] 1 All ER 157)   Transferred Malice Under the principle of transferred malice a defendant will be legally responsible for a crime if he has the essential mens rea and consigns the actus reus even though the injured party varies from the one anticipated. The foundation for this standard is the judgment of the court in R v Latimer (1886) 17 QBD 359. If the defendant has the mens rea for a dissimilar crime from that which he consigns nonetheless, the intent cannot be conveyed. (R v Pembliton (1874) LR 2 CCR 119) Coincidence of Actus Reus and Mens Rea It is a common standard in criminal law that for an individual's liability to be recognized it has to be exposed that the defendant owned the required mens rea at the occasion the actus reus was consigned - thus the two have to correspond. This is similarly recognized as the contemporaneity rule. In a number of lawsuits a literal understanding of this rule would obviously bring about injustice, and the courts have carried out ways of establishing coincidence of actus reus and mens rea when the incidents happen over a period of time, and where they represent a course of events. Continuing Acts Where the actus reus entails an ongoing action a later mens rea throughout its persistence can coincide. (Fagan v MPC [1969] 1 QB 439) Chain of Events The second means in which the courts have addressed the issue is to take account of an ongoing sequence of actions to be an ongoing actus reus for the intentions of the criminal law. If the actus reus and the mens rea are both in attendance at some instance for the duration of this chain of events, then there is legal responsibility. (Thabo Meli v R [1954] 1 WLR 228)

Criminal Law

INTRODUCTION The common foundation for entailing liability in criminal law is that the defendant have got to be attested to have carried...

FIDUCIARY DUTIES, CONFLICT OF DUTY, AND CHINESE WALLS:AN ANALYSIS OF THE CASE PRINCE JEFRI BOLKIAH V KPMG [1999] 2 AC 222

FIDUCIARY DUTIES, CONFLICT OF DUTY, AND CHINESE WALLS: AN ANALYSIS OF THE CASE PRINCE JEFRI BOLKIAH V KPMG [1999] 2 AC 222     Table of Contents I.      Introduction.. 3 II.     The Case.. 3 A.    The Facts. 4 B.    The Issues. 5 C.    The Verdict. 6 III.        Legal Background.. 7 A.    Conflict of Interest and Conflict of Duty. 7 B.    Fiduciary Duties. 9 1.     No Conflict Rule. 9 2.     Duty of Confidence. 10 3.     Duty of Loyalty. 11 4.     No Profit Rule. 12 C.    Chinese Walls. 12 IV.       Case Analysis.. 13 A.    Rightly Decided?. 13 B.    Implications on Future Cases. 15 V.    Conclusion.. 17 VI.       References.. 18   I.              Introduction The emergence of the case decision in Prince Jefri Bolkiah v KPMG has created considerable implications on the principles of confidentiality not only in the legal profession, but with actual organisations in existence. Basically, this paper intends to look into the contribution of the Prince Jefri case on the consideration of courts on legal principles surrounding confidentiality. Specifically, the obligations relating confidentiality will be taken into consideration. Along with this, a discussion on the issue of conflict and confidentiality as regarded by the decision of the court in the Prince Jefri case will be provided.  Moreover, a greater part of this paper will also focus on the application of the concept of Chinese walls into the picture. Primarily, past cases involving such concepts are going to be viewed to detect the development of the legal structure as the verdict in the Prince Jefri case was handed in the late 1990s. In the same regard, recent cases which have considered and cited the principles of the Prince Jefri case will be pointed out in this paper. The arguments and observations given in this paper are going to be supported by claims on past and existing case laws as well as legal literature directly related to the concepts of confidentiality, obligations, and the principle of Chinese walls. II.            The Case The focus of this case note is the Prince Jefri case held in 1999. The following parts of the paper will serve as an introductory part by presenting the basic attributes of the case before the actual analysis of the legal implications are given in the later part of the paper. A.           The Facts The defendant, KPMG was originally the firm taking on the yearly audit initiatives in the Brunei Investment Agency, an organisation on which the claimant Prince Jefri once served as chief. The relationship between KPMG and the BIA as in existence since 1983, eventually Prince Jefri’s ties with the BIA was severed in 1998. It must be emphasised at this point that KPMG also took on forensic accounting measures for the BIA with the request of Prince Jefri before his removal from his position in the said organisation. An issue thus has arisen on the part of Prince Jefri as KPMG being the company who had engaged in what was then coined as Project Lucy had access to all the major assets of Prince Jeri as well as the locations of these. The accounting firm also had access to the legal arrangements on which these assets were acquired and where the funds came for the Prince to purchase these possessions. However, the Government of Brunei asked the audit partner of the BIA to help in an investigation in June of 1998. The problem emerged as the BIA audit partner was in KPMG. This is compounded a month later by the instruction from the Brunei government to take on further and more in-depth forensic accounting from KPMG regarding BIA. Specifically, the project was named Project Gemma and was tasked to carry out investigations on the alleged transfer of funds in the BIA along with the assets on which these funds were purchased. At this point, it appears that Prince Jefri is in a rather compromising position as Project Gemma and Project Lucy could hurt the interest of the prince as the KPMG is facing conflicting interests. To deal with this, KPMG tried to install what was known as Chinese Walls in the operation of Project Gemma and Project Lucy. According to the case, KMPG was able to provide different partners for the two projects which involved Prince Jefri. They added particularly that Project Lucy was placed in an isolated area in the forensic department. Along with this, KPMG added that majority of the operations of Project Lucy took place in a separate level of the building providing the partners instruction to keep documents from being extracted off their portion of the building. In the same regard, the operations in Project Gemma tend to depend on Project Lucy particularly on the staffing of the former. The firm indicated that they have a strict measure of keeping those who are in Project Lucy from working in Project Gemma with exception of those who have no access whatsoever to the confidential information involving Prince Jefri himself.   B.           The Issues The House of Lords pointed out several issues on the case of Prince Jefri Bolkiah v KPMG. At the period where the case was being heard, the issue relating to duty of confidentiality were centred on issues on lawyer and client relationship as well as those between financial institutions. In the Prince Jefri case, the House of Lords tried to resolve the issue as to whether in the instance whether an individual is still subject to the duty of confidentiality even as the client relationship has ceased. That is to say, is this individual still bound by this duty not to reveal information that is considered confidential? In addition, issues as to whether this person still have the duty not to place a former client in jeopardy by using a information privy of both of them when the relationship was still in operation.  Other issues that were tested involved the effectiveness of the principle of Chinese Walls with regards to compliance and the factors that constitute what cold be considered legally stable and effective Chinese Wall. C.           The Verdict The House of Lords held that the KPMG has the duty to keep the information to be confidential. This means that KPMG’s attempts to keep the information from leaking by taking on some measures to ensure that this will never happen will never suffice legally. The House of Lords even pointed out that the issue of preserving confidentiality is not even a qualified duty at this case considering there was an apparent conflict in of interest on the part of KPMG even before Project Gemma was accepted. The court held that KPMG should have considered that accepting such a commission on the Brunei Government essentially places the confidential data that they have of Prince Jefri at risk. The court further pointed out that risk at which KMPG placed Prince Jefri in was essentially avoidable to begin with. Nevertheless, the courts also mentioned that the use of Chinese Walls may have worked “in some instances” particularly in instances where this concept is plainly established, unlike that provided by the KPMG. The problem, according to the courts, is that the arrangements involving the case of Prince Jefri and KPMG are confined within one department of the firm. Though steps, according to KPMG, were acquired to limit interaction between the “projects” the House of Lords deemed that physical separation will simply not suffice. This is because the interaction between the staff and management in this department is essentially inevitable which also places unwarranted risk of confidential information leaking. At this point, the House of Lords approved the request for injunction forwarded by Prince Jefri in taking the commission of the Brunei Government regarding the BIA investigation.     III.           Legal Background The facts presented above on the Prince Jefri case presented certain elements that require review of former cases and legal principles. In this part of the paper, a close examination of the established principles on conflict of interest, fiduciary duties, and the Chinese Walls will be given. A.           Conflict of Interest and Conflict of Duty In the legal context, conflict of interest and conflict of duty are based on a common element, the fiduciary duty of the parties involved. Basically this duty is held closely to a relationship bound by good faith, loyalty, and trust. This thus places this legal relationship among the most highly held relationships in law. Any presence of conflict, or the possibility of being in a situation that makes it susceptible for such to take place, is distinctly proscribed for any person having fiduciary duty.[1] (1992) This is also stated in the Woolworths Ltd v Kelly case mentioning the duty of a fiduciary to avoid any set of circumstances where their individual interests and their fiduciary duty to another are in conflict.[2] This means that the interest of their principal, or client in the Prince Jefri case, prevails over the interests of the one holding the fiduciary duty. The Prince Jefri case also emphasises a           close consideration on the issue of, aside from the conflict of interest, conflict of duty. This is normally seen in fiduciary relationships among lawyers and clients.[3] The fiduciary relationship between accountants and their clients has yet to be established in any legal case law. This means that the case between Prince Jefri and KPMG similarly established this precedent. However, an English case indicated that a fiduciary relationship exist with the presence of “intimate and confidential relations” and with the dependence of an individual to another based on “infinite trust.”[4] In considering the facts of the Prince Jefri case, his relationship with KPMG appears to be comparable to fiduciary relationship as the KPMG is privy to confidential information that could compromise the interest of its client. Having such a conflict is dangerous as indicated in the Alexander v Perpetual Trustees WA Ltd case as this makes the duty of care of those in the fiduciary relationship indistinct.[5] It is thus imperative to take on an examination on the existing and established fiduciary duties held in law, especially those directly related to the issues held in the Prince Jefri case. The status of the fiduciary duties before the judgment is given to the said case tends to display the established principles consulted by the courts in dealing with such legal issues.   B.           Fiduciary Duties The propriety of fiduciary duties appears as among the top elements in cindering legal relationship among individuals. Early case laws on the subject even noted that the proper implementation and regard on these duties are required for the protection of mankind.[6] It has been established in the past cases that the element of trust has to be considered as one of the most important factors in determining the existence of a fiduciary duty.[7] This means a reliance on this trust of one of the parties involved in the relationship holds the key as to whether an individual is in breach of such duties or not. In UK, the Law Commission summarised these duties into four separate elements pertaining generally to the obligation of the parties to a fiduciary relationship.[8] These duties are discussed separately in this part of the paper. 1.    No Conflict Rule This rule is essentially based on the opinion of Lord Upjohn in the Boardman v Phipps case.[9] The rule basically covers what has been discussed in the earlier part regarding the issues of conflict: conflict of interest and conflict of duty. Moreover, the Law Commission have indicated that a condition of sensibility regarding the occurrence of conflict has to be apparent. This implies that the parties to a fiduciary relationship should be able to take sensible actions meant to avert any possible position where conflict of interest or conflict of duty may emerge. 2.    Duty of Confidence The legal connotation of duty of confidentiality is not limited to those considered to be in a fiduciary relationship. There are instances where duty of confidence is given in the context of contractual relationships.[10] Moreover, this duty of confidence is also bestowed to financial institutions like KPMG. The Tournier v. National Provincial and Union Bank of England is the original case law that provides commercial and financial organisation a duty to keep the information acquired from its clients in confidence for the benefit of any other individual.[11] In any case, the rule on this matter is that no party shall be permitted to use such information acquired in confidence to employ it and acquire an “unfair advantage of it.”[12] In the case of Seaver v Copydex, breach of confidentiality has become one of the major claims against the defendant. At this point, the possibility of breach in confidentiality tends to imply that the parties involved were not able to address thief fiduciary duties effectively and in a sensible manner. Particularly, they allowed themselves to be in a position where the confidential information given. This applied greatly in the Prince Jefri case considering that confidentiality of the information was the main issue.       3.    Duty of Loyalty The UK Law Commission mentioned the duty of loyalty on their report and even pushed it further to denote the “undivided loyalty rule.”[13]  This means that there is an inherent assumption among those in a fiduciary relationship that they will look on the interest of the other exclusively. It is mentioned in an English case that the presence of loyalty is the defining element in any fiduciary relationship.[14] In the Spincode v Look Software case, it mentioned that the effect of loyalty in a case is dual: “First, if the fiduciary is being remunerated by either or both of the parties, the `conflict of duty interest' theme in the fiduciary's obligation requires him to disclose to each client that he is being remunerated by the other. Secondly, much more importantly, until each client agrees to the contrary, or unless there is a legally acknowledged custom to the contrary, each client is entitled to, and is entitled to assume that he has, the undivided loyalty of the fiduciary he has engaged.”[15]   This means that any individual who is confined to this duty of undivided loyalty should not make a structure for the interest of the other individual acting as the client and eventually acquire the commission of another person to assault the said structure. This is apparent in the Prince Jefri case as seen in the actions of KPMG. The creation of Project Lucy and Project Gemma essentially constitute of elements that could inevitably be used to one another. The risk of leaking information given by Prince Jefri in confidence fundamentally represents this assault. 4.    No Profit Rule The “no profit rule” mentioned by the Law Commission pointed out that “A fiduciary must not profit from his position at the expense of his customer, the beneficiary.“[16]   This indicates the legal duty of the parties to a fiduciary relationship to gain advantage in the expense of the other party. This is also discussed in the Boardman v Phipps case.[17] Based on the decisions made by the court, the regard towards the interpretation of the law is rather stern. Seen also in the case, a person with access to “inside information” bestows fiduciary duty to another individual.    C.           Chinese Walls Basically, this concept is the process pointing to the initiatives taken by a particular firm with regards to information. Specifically, Chinese walls points to the barriers installed by the company to limit the flow of sensitive information.[18] This initiative is normally taken when there are specific people in the firm who are privy to information which held in confidence within the organisation. The use of this course of action is considerably becoming frequent as companies have been engaging with multiple clients with the implication of globalisation. Before the Prince Jefri case has been established, the area surrounding the use of this concept has been under immense scepticism. Based on the existing case laws in the English and the Australian context, the concept of Chinese walls was not discussed in cases of dispute between clients and accounting firms. This implies that the judgment in Jefris has been among the first to use this as a means of legal defence.     IV.          Case Analysis As seen above, the Prince Jefri case has indeed provided the impetus for the legal consideration of fiduciary relationship and conflict of interest and duty. The following part will be providing an examination of the case particularly with the verdict provided by the House of Lords. A.           Rightly Decided? Basically the decision in the case notes that the KPMG should have refused to take the commission on the new instructions given by the Brunei government to investigate Prince Jefri’s concerns. In order to analyse as to whether it was appropriately judged, this paper will be focusing on UK Law commission’s definition of fiduciary duties.    For instance, based on the “no conflict” rule, the case shows that the firm was indeed in breach of the fiduciary duties it has with Prince Jefri, regardless of the fact that he considered was a past client. The problem on the part of KPMG was that they did not realise that fiduciary duties are bestowed to them as a company, thus the duty is given to the company as a whole and not merely to the individual who holds the confidential information they have regarding the affairs of the Prince. Thus, accepting the order from the government of Brunei is rather a lapse on judgement on their part as it was foreseeable that the possibility of conflict was apparent. This paper will have to agree on the judgement that the imposition of the Chinese walls is not enough to mitigate this conflict. Though it is understandable on the part of KPMG that they are susceptible to such a condition given that they were a multi-function company, the firm should have realised that installing barriers will not stop any information in leaking, especially in the conditions they are in where Projects Lucy and Gemma are held within the same department.  The case also mentioned the speech of Lord Millet indicating that KPMG, given that it was still acting as a fiduciary, is not at liberty to take the commission from the Brunei government. He noted that a fiduciary is not allowed to work against and in favour of a particular client all at once.[19] This highlights the reference to the no profit rule. In the same regard, one must also take note on the fact that the report of the Law Commission of UK regarding the duty of undivided loyalty bestows the duty to the fiduciary to give a client all the information that he/she requires to protect and develop his/her interests. In the case of KPMG, being both an accounting and legal firm, tends to complicates things as they have entitled the Brunei Government to all the information that it needed for the investigation of the Prince in his affairs with the BIA. These should have been well and straightforward if the company did not serve as a fiduciary of the Prince. This thus still protects the Prince as the firm still owes him the duty of confidentiality. To answer the question: was the case rightly decided? It is the contention of this paper that the House of Lords was right in affirming the decision of the High Courts and the Courts of Appeal. The firm was in blatant breach of it fiduciary duties and should have avoided it at the very start.     B.           Implications on Future Cases The case has become one of the most cited case laws with reference to the conflicts of interest and fiduciary duties. The following are recent cases that used the judgment and principles in the Prince Jefri case in determining its verdict. Essentially, these cases were also influential in their respective rights as they have similarly established innovative legal principles since the Prince Jefri case.     ASIC v Citigroup Global Markets Australia Pty Ltd[20] This recent Australian case represents a new addition to the innumerable cases involving financial institutions. In this case, the Australian Securities and Investments Commission (ASIC) alleged that the Citigroup was engaging in insider trading between Patrick Corporation Ltd and Toll Holdings Ltd. Another allegation was that the financial institution failed to comply with the Corporations Act 2001 of the country pertaining to the adequate arrangement required of companies to manage conflict of interest in case these arise.[21] These allegations were decided with reference to the federal court’s interpretation of the Prince Jefri case. Particular focus was given to the use of Chinese walls to protect the information privy of other units in the company. The federal court intimated that Citigroup did install a sufficient amount of arrangements that could manage the conflict if it did take place. In the same regard, the federal court took the principles given in the Prince Jefri case regarding the use of Chinese walls. They pointed out that “a raft of written policies and procedures” are not enough to contain the possibility of information leaking. Thus, this case law similar took the stand of the Prince Jefri case relating to the lacking nature of Chinese walls in instituting protections from conflict of interest. In this case, it established that regardless of the presence of proper monitoring and strict disciplinary actions, confidential information will never be safe as daily contact among the staff is incontrovertible.       Marks & Spencer Plc v Freshfields Bruckhaus Deringer[22] This English case is slightly similar to the Prince Jefri case but the setting is seen between solicitor and client. In this case, Freshfields initially represented Marks and Spencer. Given that this relationship, there was a period where Freshfields was commissioned by Philip Green to manage the bid to acquire Marks and Spencer. A challenge was thus raised regarding the conflict of interest present on the part of Freshfields. Specifically, Marks and Spencer claimed that Freshfield acted without consulting them on representing Philip Green. The Prince Jefri case was thus consulted. The high court deemed that there is an existing fiduciary duty between Marks and Spencer and Freshfields. This therefore prohibits Freshfields from acquiring any commission on the part of any entity seeking to go against the interests of Marks and Spencer. The courts also highlighted the principle indicated in the Prince Jefri case regarding a fiduciary working for and against a party in the same time. Seeing the cases above, the Prince Jefri case has thus established a new precedent involving the confidential information principle as well as the recognition of fiduciary duty. Specifically, the case has provided that companies should be cognisant of the possibility of any conflict of duty even before a relationship is established, and that mere protection like physical separation or a set of policies will suffice in protecting confidential information. On the other hand, the Marks and Spencer case maintained that fiduciary duty still exist even for part clients.     V.           Conclusion The discussions above have presented the description of the Prince Jefri Case and its implication in the estimation of the legal framework with the rest of the globe, specifically in countries like Australia and UK who have accepted the principles of the law. This paper maintains that the findings of the Prince Jefri case were made in an opportune time when the configuration of the modern organisation as it is slowly acquiring multifarious functions. As seen in the case of KPMG, functions for investigation and accounting purposes were held in conjunction with other capabilities. Along with the reputation of the firm, the apparent capabilities allow them to be appealing in the eye of potential clients. As intimated in this paper, it is inevitable for a company like KPMG to acquire clients with interest distinctly separate with one another. There is always a possibility that they could encounter conflict of duty and conflict of interest along the way. It is the contention of the Prince Jefri case that, once conflict or any glimpse of breach in fiduciary duty is at bay, proper management is taken. To boot, the context of proper management does not constitute the imposition of Chinese walls or any policy that restricts the flow of confidential information in the organisation. In any case, the findings of the case imply the responsibility of a company in determining early on whether they will be encountering conflict of interest or conflict of duty on both existing and past clients.

FIDUCIARY DUTIES, CONFLICT OF DUTY, AND CHINESE WALLS:AN ANALYSIS OF THE CASE PRINCE JEFRI BOLKIAH V KPMG [1999] 2 AC 222

FIDUCIARY DUTIES, CONFLICT OF DUTY, AND CHINESE WALLS: AN ANALYSIS OF THE CASE PRINCE JEFRI BOLKIAH V KPMG [1999] 2 AC 222 T...

A Master's Level Essay :Critically examine the legal means by which companies may be brought to justice for acts or omissions, which result in death or serious injury to individuals.

Critically examine the legal means by which companies may be brought to justice for acts or omissions, which result in death or serious injury to individuals.   Introduction             The premise of the legal means in bringing companies or corporations to justice for their acts and omissions resulting in death or serious injury to individuals is the personality of companies distinct from its founders and officers. Companies are by law single entities, with separate personality from the individuals that make up the organisation. (Barrett, 2007) The implication is two-fold. Corporations can engage in transactions as an entity and it can sue or make claims against another entity. Concurrently, it can also be the subject of suit even for civil and/or criminal liability.                  The options available in attaching liability to companies differ depending on the legal area applicable to the situation. Corporate law focuses on the regulation of the company’s relationship with the members of the organisation as contrasted with its responsibilities with parties external to the company. Civil and criminal laws apply to the dealings or relationship of the company with external entities. Civil law encompassing contracts, tort and restitution equally apply to individuals and corporations. The attribution of accountability or responsibility to corporations is relatively non-problematic because this area of law does not require the consideration of fault and even in tort law, particularly negligence, assessment of fault is objective in supporting liability. However, this is not true for criminal law, which heavily relies on the determination of moral fault to support the attribution of liability. Attributing criminal liability to corporations is problematic because the enforcement of liability is not through compensation but through a punishment system that applies standards in determining fault including intent, premeditation, and subjective carelessness. The problem emerges from the difficulty in applying these standards to corporations, which although given a separate identity, acts through the people making up the company.             Generally, three theories support the attribution of blame to corporations. First is the agency principle, which provides that the company assume liability for the acts or omissions of its employees acting as its agents. This principle attributes liability to companies so that responsibility for damages accrues to the corporation. Second is the blame attribution theory, which applies to all other situations that the agency principle does not cover. This theory identifies a particular layer of senior company officers as the brains of the acts or omissions committed by the company. The acts or omissions of these senior officers attribute liability to the company. This does not cover the acts or omissions of other employees below senior company officers. Third is corporate blame based on the culture, procedures and systems employed by the company. The first and second theories commonly equate individual and corporate culpability. The third theory recognises the differences between individuals and corporations in the attribution of liability. These theories comprise the framework for the attribution of civil and criminal liability to companies. (Glazebook, 2002)             As a problem area, the focus of the discussion is on the attribution of civil and/or criminal liability to companies for deaths and serious injuries. Although, civil and criminal law require different elements for the attribution of liability, these can co-exist. This means that companies can become liable civilly and criminally for the same act or omission resulting to deaths or serious injuries. Tort law is the means of attributing civil liability to companies for deaths and serious injuries. As long as the company is proven to have committed the act or omission leading to the death or serious injury, the company can be civilly liable to the claimant. This also may not prevent claimants from pursuing a separate criminal prosecution of the company. In criminal claims, attribution of liability to companies could be according to the rules of intentional acts or omissions or negligence, which is the common situation for corporations. The discussion focuses on negligence in attributing criminal liability to companies by considering the provisions of the Health and Safety at Work Act 1974 and the Corporate Manslaughter and Corporate Homicide Act 2007.             The paper has two general discussion sections, one is using civil law to bring companies to justice for deaths and injuries and the other is using criminal law to attribute criminal liability to companies for deaths and serious injuries. The discussion provides how to attribute civil and/or criminal liability to companies and identify the limitations or problems in doing so.   Attributing Liability to Companies under Civil Law             Four elements distinguish the operation of civil law in attributing liability to entities. First, the parties involved are private individuals. This means that the action depends on the assertion of rights by entities and claims based on expected duties or obligations. Pursuit of claims under civil law depends on the action of the entities or parties involved. Second, the courts determine civil claims by considering evidence of whether the party claimed to have caused harm or injury to the claimant did the act or omission resulting to the harm. The existence of rights and obligations between entities becomes the basis of the validity of the claim. Third, the remedy for civil liability is damages, which could be in monetary or non-monetary terms, as compensation for the injury or loss incurred by the claiming party. Fourth, the burden of proof to support civil liability is ‘preponderance of evidence’. This means that as long as a reasonable consideration of evidence shows proof of the act or commission, then this is enough to support the imposition of damages. (Sime & French, 2009)             Tort comprises one form of civil wrong. As such, the attribution of liability follows civil law rules. In attributing liability to companies, liability should emerge from acts or omissions considered as wrongful, such as when there is a duty to perform an act or to refrain from committing an act. (Steele, 2007) In the employer and employee relationship, the liability for the commission of an act or omission made by the employee accrues to the employer through vicarious liability due to the operation of the agency theory. In this situation, the employee becomes personally liable while the employer becomes vicariously liable.             Another consideration in accruing liability to companies is proof of fault, which means that the claimant should be able to prove that the defendant indeed committed the act or omitted to commit an act, whether this is with intent or negligently. However, it could also happen that liability could fall under strict liability. Rylands v. Fletcher (1868) involved the case of a company that built a dam or reservoir to support its mill business. During the excavation, the contractor and engineers run across vertical shafts. Thinking these to be abandoned shafts, the company continued with the excavation and filled this with water. After a few days, the shafts gave way and flooded the mine where the plaintiffs worked. The court held that the company is liable for the damage done and harm caused because even if there was no intention to commit harm, the engagement in an activity that is ordinarily safe but becomes dangerous when things go wrong, such as dammed water if released, gives rise to liability.             The last consideration in accruing liability to the company is proof that the claimant has indeed experienced the damage or injury, which should be proximate to the act or omission. This means that the chain of events commencing with the act or omission should be continuous to attribute liability to the company.             Attribution of civil liability to companies for negligence could be through strict liability or vicarious liability. The attribution of civil liability to companies could be indirect such as when the accrual of liability is through the actions of agents. It could also be direct as in the operation of strict liability where the company accrues liability for acts or omissions regardless of culpability. (Sime & French, 2009)             Relative to death or serious injury, negligence liability attribution to companies applies. Section 2(1) of the Unfair Contract Terms Act 1977 provides for the accrual of liability for death or personal injury that cannot be restricted because of contractual terms such as exclusion clauses. This means that even if there is a contract providing excluding companies from liability for death and injuries, if these happens, companies would still become liable. In employment contracts, companies become civilly liable for acts or omissions that could cause death or serious injury to employees and managers. In sales contracts, consumer protection legislations provide for the civil liability of companies for deaths or serious in injuries caused by intentional or negligent acts or omissions causing death or serious injuries to consumers or third persons because of defective products.             However, based on the trend, there is preference for the attribution of criminal liability to companies in the case of deaths, with civil liability consisting only of an accompanying or incidental liability. A compelling reason could be the more severe penalty in pursuing a criminal complaint against a company because of the possible imposition of a prison terms together with fines. As such, the case carries a greater deterrent value for companies and perhaps even a greater sense of justice for the injured parties. However, although companies have separate personality and subject to the imposition of criminal liability, the implementation of the penalty, particularly the prison sentence, is only through the personal liability. Meaning, in case of a prison term, the agent or senior officers personally liable will serve the sentence. In this sense, pursuing a civil claim against a company for damages could comprise a more direct means of attributing liability on the company.             Herald v. Rankin (2000) expresses the parallel deterrent value of pursuing civil liability. The case involved a claim for damages for serious injuries in the course of work. The issues not only revolved around the merits of the claim but also on the sufficiency of the existing compensation systems for serious injuries. The court increased the award of damages for serious injuries by one-third of the existing computation because of the extent of the damage, which in effect strengthened the awards system. However, although some commend the decision, others perceive the increase as reserved considering that damages involves full compensation encompassing both pecuniary and non-monetary damages as provided in the Livingstone v. Rawyards Coal Company (1880).                    The issue with civil liability and damages is the computation of full compensation. H West & Sons Ltd v. Shephard (1964) articulated the necessary artificiality of computations in civil claims because of the lack of a simple or standard formula for computing the extent of pain and suffering in the case of serious injuries. Often, claimants expect more and respondents expect less. In effect, there could be differentiated satisfaction with the decision of the court. In the Herald case, the computation only concerned serious injuries and not death. This means that there could be a disparity in the civil award for serious injuries and deaths.             Although attributing civil liability to companies for serious injuries is less complex than pursuing criminal liability because of the rules on torts, particularly negligence that defines the civil liability of companies for injuries and deaths, there are also issues in attributing civil liability. One is the necessity of doing so through the personal liability under the agency principle or through the operation of the blame attribution theory in including a limited layer of senior officers as personally liable for the result of the act or omission. The exception is strict liability, where companies accrue liability regardless of culpability. Another is the enforcement of awards for damages, which requires clarifications for deaths and serious injuries. Attributing Liability to Companies under Criminal Law             Attribution of criminal liability to companies for deaths and serious injuries through personal liability could be via the operation of the Health and Safety at Work Act or through corporate liability via the Corporate Manslaughter and Corporate Homicide Act 2007. These modes apply different principles of liability attribution to corporations.             As the two legislations used to attribute criminal liability for deaths or serious injuries to companies, these have varying scopes and jurisdictions. However, because of the compatibility of these two statutes, this opens the possibility of using both legislations simultaneously to attribute criminal liability to companies. One distinction between the Health and Safety at Work Act and Corporate Manslaughter and Corporate Homicide Act is the limitation of the former in covering damages or injuries emerging from transportation, since received sufficient coverage in other laws. The limitation of the latter is the focus on liability for deaths attributed to companies in diverse situations involving gross negligence. Another distinction is the purpose of the health and safety legislation of covering personal injuries by preventing situations that cause injuries. As such, the legislations do not particularly focus on addressing liability for personal injuries but criminalizing acts that lead to personal injuries. The purpose of preventive since the operation of the law minimizes claims against companies for personal injuries by deterring companies from being negligent on their duty to prevent situations leading to personal injury. The corporate manslaughter legislation serves a purpose only when the gross neglect of duty leads to death. This means that other provisions likely to apply in case actual injuries were sustained. Last distinction is the non-mention in the corporate manslaughter legislation of personal liability when compared to the explicit mention of personal liability in the health and safety statute. This implies that the corporate manslaughter law constitutes the exclusive means of attributing criminal liability to companies for deaths caused by gross negligence. (Barrett, 2007)   Health and Safety at Work Act 1974             Section 37(1) of the Health and Safety at Work Act 1974 attributes liability to the companies or corporations for acts of omissions with consent or by neglect. This also sets out the parties personally liable including any “director, manager, secretary or other similar officer of the body corporate” or any other party acting the capacity of these officers. These officers are personally liable together with the company.  Section 37(2) explains that the liability accrues when the acts or omissions are in connection with the exercise of the function of the officers. Section 36 and 37 also identifies secondary liability in case the primary liability accrues to another individual. Section 33(4) also provides for five different situations where officers of corporations could accrue personal liability to individuals. These situations are lack of license in operating as a company, violating the terms of the license, improper handling of explosives, violating a notice of prohibition, and misuse of specific information. Although the provisions do not explicitly mention deaths or serious injuries as the subject of claims against the company, these provisions could apply in considering deaths and serious injuries sustained in the course of work.             These provisions have applied for thirty years such as in the case of JJ Armour v. J Skeen (1977) that attributed criminal liability to the Director of Roads working under the Stathclyde Regional Council. This case commenced with the injury sustained by a boy who was thrown out of a forklift truck when this collided with a car with a third reel of newspapers reel above two clamped reels of newspapers. This case set out certain factors requiring proof to establish liability for injuries sustained by claimants. These factors include a show of violation of Sections 2 and 3 of the Health and Safety at Work Act, the existence of duty on the part of the respondent to know the facts comprising the violation, duty to act on these facts, neglect of duty since knowledge and action should have prevented the injury, and the neglect of duty caused the violation of Sections 1 and 2.             Despite these guidelines in attributing liability through negligence, no further guidance on the application of these rules emerged until the explanation given in R v. P and others (2007). Latham J reiterated the interpretation in Wotherspoon v. HM Avocate (1978) that section 37(1) does not necessitate the existence of wilful neglect on the part of the defendant and the factor of knowledge of material facts refers to the consideration of whether or not the defendant willingly ignored the material facts or actions on the material facts. This in turn constituted the test for a finding of neglect because of connivance. This case clarified that interpretation of neglect should be its ordinary meaning. This implies that using the facts of the JJ Armour case it is sufficient to show proof that the respondent knew of the unsafe work practices of employees of stacking unclamped newspaper reels. This is sufficient to support the duty to act on this fact and that the neglect of duty caused the injury to the claimant.             Moreover, although there was already a clarification of the manner of attributing criminal liability to companies under the Health and Safety at Work Act, the explanation of attribution seems to suggest the intention that the circumstances would prove the company’s non-violation of the law had it not been for the neglect on the part of management and that at least one corporate officer is culpable. If so, this created confusion on whether an officer charged can escape liability by stating that responsibility for the situation is shared with other officers who were not included in the complaint. As such, action towards the violation of safety standards at work could be rectified only via the cooperation or participation of the other officers. Nevertheless, the provisions provide different modes of attributing liability through neglect so that officers could accrue personal liability for consent, connivance or the simple interpretation of negligence in tort law.             Since the clarification of the interpretation of the application of Section 37(1) only came out in 2007, the applicability of this interpretation in actual cases is yet to be proven although a consideration of its applicability in theory seems to support clearer means of attributing liability to corporations and its officers for injuries sustained in the workplace because of negligence. Actual cases invoking this law should support the further assessment of the provisions.   Corporate Manslaughter and Corporate Homicide Act 2007             Provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 support the attribution of corporate criminal liability to companies for deaths. Section 1(1) establishes the new offence for which companies could become liable. Liability accrues to companies when the act or omission constituting a criminal offence led to an individual’s death and this reflects gross violation of the duty of care of the company towards the deceased. Since the provision use the conjunction ‘and’, this means that these elements should exist together to successfully claim liability against a company. This means that the death should be caused by a gross negligence of duty, which begs the question on the factors comprising gross violation of the duty of care. This may be necessary to provide guidance on the proof necessary to attribute liability to companies. Section 1(3) adds that the attribution of criminal liability to a company happens in cases when control of the firm is via a senior management. This constitutes an important element in the attribution of criminal liability to companies. However, this limits the companies subject to criminal liability since only large companies are likely to have a distinct senior management aligned with the layers of senior officers under the blame attribution theory.             In application, the court proceedings for claims under the Corporate Manslaughter and Corporate Homicide Act constitute trial on indictment. Section 1(6) provides unlimited fine as the penalty for findings of corporate criminal liability for manslaughter. This is the aspect supporting corporate criminal liability. Since the penalty is unlimited fines, this can be attributed to the company unlike the operation of personal liability in the Health and Safety at Work Act. This also comprises the parallelism between corporate civil liability and corporate criminal liability for manslaughter.             This law enhance deterrence effect since claims under this law does not prevent plaintiffs from seeking remedies under Section 19 of the Health and Safety at Work Act 1974. This means that unlimited fines depending on the decision of the court could accrue to the company apart from the personal liability that senior officers or managers under the Health and Safety at Work Act.             As a law encompassing liability for deaths attributable to companies, this abolished manslaughter by gross negligence under common law. This means that companies can be brought to justice for deaths can successfully be made by invoking the provisions of the Corporate Manslaughter and Corporate Homicide Act together with applicable provisions of the Health and Safety at Work Act.             In practice, the successful prosecution of cases of corporate manslaughter is difficult to achieve. This could be because of the non-mention of personal liability and yet the need to prove gross negligence of duty. This appears problematic since proof of gross negligence necessitates personal liability since a company acts through its members. This means the need to clarify provisions of the law in actual cases to support applicability.             Gross negligence of duty implies the existence of a duty of care of the company towards the deceased and that there was breach of that duty via gross negligence. This constitutes a critical element of the attribution of liability to companies for deaths. Donaghue v. Stevenson (1932) clarified the absolute duty of care of companies to consumers. This case explained duty of care through the ‘neighbourhood principle’ or taking reasonable care in voiding acts or omissions that could likely injure neighbours in exercising reasonable foresight. Caparo Industries Plc v. Dickman (1990) further clarified the duty of care by identifying three key elements, which are 1) foresight of the damage or injury, 2) proximal link between the claimant and defendant, and 3) reasonable imposition of the duty of care of the defendant towards the claimant or plaintiff given the facts of the case. Although, these cases have been able to clarify the duty of care for purposes of attributing criminal liability to companies, the operation of the duty of care within the provisions of the corporate manslaughter law still depends on the clarification of personal liability. It is true that the determination of duty of care and gross negligence thereof could be proven through the testimonies of officers of the company and other witnesses this still involves the determination of the members of the organisation whose acts or omissions led to the breach of the duty of care causing an individual’s death. Without doing so, gross negligence of the company is difficult to prove. Difficulty in proving gross negligence then reflects on the success of the claim against companies under the corporate manslaughter law.             Attributing criminal liability to companies also involves the determination of mens rea or criminal intent. While Salomon v. Salomon (1897) has established the separate identify of corporations making these susceptible to criminal liability, the imposition of this type of liability involves the determination of criminal intent. This also necessitates the identification of members of the company responsible for the acts or omissions causing the death of an individual. This explains the difficulty in pursuing criminal liability claims against companies under the corporate manslaughter statute. The law does not mention personal liability and yet there is need to point of the guilty parties. The determination of criminal intent is difficult to prove without clarifying the issue of personal liability since it is difficult to determine criminal intent of companies, which are non-corporeal entities. Although many claims may have been filed against companies under corporate manslaughter, these did not prosper because of problems in proving criminal intent.             Even prior to the enactment of the corporate manslaughter law in 2007, the same difficulties emerged in the crime of corporate manslaughter attributable to companies under common law. It was only in 1994 that a claim against a company for corporate manslaughter succeeded. This case made Active Learning and Leisure Ltd as the first company prosecuted for corporate manslaughter. A canoeing incident taking lives of four teenagers preceded the filing of a claim for corporate manslaughter against the company. (Jacobs, 1996) The factor that likely enabled the prosecution of the company is that a single proprietor owns the company. This means that by analogy, the determination of criminal intent lies only on the acts or omission of the sole owner acting in behalf of the company.             Since this precedent case, there were only three other cases involving the successful prosecution of companies for corporate manslaughter. These cases added the three companies Jackson Transport Limited, English Brothers Limited and Teglgaard Hardwood Limited as firms held liable for corporate manslaughter. The size of management team and the scale of operation of the company comprise the common denominator for these four companies. All the companies have sole or small management groups making it easy to determine criminal intent and breach of duty of care by considering the actions of the owners and/or managers. Since this is the key factor determining the success of the prosecution, this points to the weakness in attributing corporate manslaughter against companies. This weakness appears to have carried over to the new corporate manslaughter legislation. The clarification of personal liability and the applicability of the provisions to companies in general and not only to individually owned or small group managed firms comprise the areas for improvement in the new legislation enabling the attribution to companies of criminal liability for deaths.             Using the overlaps between the health and safety and corporate manslaughter statutes is a solution but only in part. Since the health and safety law covers acts or omissions that could lead to deaths or serious injuries, its provisions could be used to attribute corporate criminal liability for injuries or deaths. However, the basis of claim is neglect of duty for the acts or omissions that created an unhealthy and unsafe work environment. Nevertheless, this cannot cover all the situations envisioned by the corporate manslaughter law. Although allowable civil claims could compensate for these issues, there remains the need look into the weaknesses of the new corporate manslaughter law. Conclusion             There are various ways of attributing liability to companies for deaths and serious injuries. This could be through either civil or criminal law. Attribution of civil liability to companies for negligence could be through strict liability or vicarious liability. The attribution of civil liability to companies could be indirect such as when the accrual of liability is through the actions of agents. It could also be direct as in the operation of strict liability where the company accrues liability for acts or omissions regardless of culpability. Attribution of criminal liability to companies for deaths and serious injuries through personal liability could be via the operation of the Health and Safety at Work Act that focuses on preventing personal injuries or through corporate liability via the Corporate Manslaughter and Corporate Homicide Act 2007 covering deaths. Nevertheless, a common principle traversing both civil and criminal law is negligence. Although using civil or criminal liability and using both could support the attribution of liability on companies for deaths or serious injuries, there are limitations and problems in practice leading to need for further assessment of these means, when considering that deaths or serious injuries possibly attributable to companies are common occurrences.   References Secondary Sources Barrett, B. (2007). Liability for safety offences: Is the law still fatally flawed?.          Industrial Law Journal, 37(1), 100-118. Glazebook, P. R. (2002). A better way of convicting business of avoidable deaths            and injuries. The Cambridge Law Journal, 16(2), 405-422.  Jacobs, Y. (1996). Safety at adventure activities centres following the Lyme Bay  tragedy: What are the legal consequences. Education and the Law, 8(4),       295-306. Sime, S., & French, D. (eds.) (2009). Blackstone’s civil practice 2009. Oxford:        Oxford University Press. Steele, J. (2007). Tort law: Text, cases and materials. Oxford: Oxford University     Press. Legislations Corporate Manslaughter and Corporate Homicide Act 2007 Health and Safety at Work Act 1974 Unfair Contract Terms Act 1977 Court Cases Caparo Industries plc v. Dickman, 2 AC 605 (1990) Donoghue v. Stevenson, AC 562 (1932) H West & Sons Ltd v. Shephard, AC 326 (1964) Heil v. Rankin, 2 WLR 1173 (2000) JJ Armour v. J Skeen (Procurator Fiscal, Glasgow), IRLR 310 (1977) Livingstone v. Rawyards Coal Company, 5 App. Cas. 25 (1880) Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) R v. P and others, The Court of Appeal, (Criminal Division) (11 July 2007) Salomon v. Salomon & Co Ltd, AC 22 (1897) Wotherspoon v. HM Avocate, JC 74 (1978)

A Master's Level Essay :Critically examine the legal means by which companies may be brought to justice for acts or omissions, which result in death or serious injury to individuals.

Critically examine the legal means by which companies may be brought to justice for acts or omissions, which result in death or serious i...