Vicarious liability (criminal)

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The legal principle of vicarious liability applies to hold one person liable for the actions of another when engaged in some form of joint or collective activity.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

In law, liable means "responsible or answerable in law; legally obligated." Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability. Claimants can prove liability through a myriad of different theories, known as theories of liability. Which theories of liability are available in a given case depends on nature of the law in question. For example, in case involving a contractual dispute, one available theory of liability is breach of contract; or in the tort context, negligence, negligence per se, respondeat superior, vicarious liability, strict liability, or intentional conduct are all valid theories of liability.

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History

Before the emergence of states which could bear the high costs of maintaining national policing and impartial court systems, local communities operated self-help systems to keep the peace and to enforce contracts. Until the thirteenth century, one of the institutions that emerged was an involuntary collective responsibility for the actions committed by one of the group. This was formalised into the community responsibility system (CRS) which was enforced by a fear of loss of community reputation and of retaliation by the injured community if the appropriate compensation was not paid. In some countries where the political system supported it, collective responsibility was gradually phased out in favour of individual responsibility. In Germany and Italy, collective systems were in operation as late as the sixteenth century.

While communities were relatively small and homogeneous, CRS could work well, but as populations increased and merchants began to trade across ever wider territories, the system failed to match the emerging societies' needs for more personal accountability and responsibility. In England, Henry I allowed London to opt out of the CRS and to appoint a sheriff and justices in 1133, and between 1225 and 1232, Henry III assured the merchants of Ypres that none of them "will be detained in England nor will they be partitions for another's debts". [1]

Henry I of England 12th-century King of England and Duke of Normandy

Henry I, also known as Henry Beauclerc, was King of England from 1100 to his death in 1135. Henry was the fourth son of William the Conqueror and was educated in Latin and the liberal arts. On William's death in 1087, Henry's elder brothers Robert Curthose and William Rufus inherited Normandy and England, respectively, but Henry was left landless. Henry purchased the County of Cotentin in western Normandy from Robert, but William and Robert deposed him in 1091. Henry gradually rebuilt his power base in the Cotentin and allied himself with William against Robert. Henry was present when William died in a hunting accident in 1100, and he seized the English throne, promising at his coronation to correct many of William's less popular policies. Henry married Matilda of Scotland but continued to have a large number of mistresses by whom he had many illegitimate children.

London Capital of the United Kingdom

London is the capital and largest city of both England and the United Kingdom. Standing on the River Thames in the south-east of England, at the head of its 50-mile (80 km) estuary leading to the North Sea, London has been a major settlement for two millennia. Londinium was founded by the Romans. The City of London, London's ancient core − an area of just 1.12 square miles (2.9 km2) and colloquially known as the Square Mile − retains boundaries that follow closely its medieval limits. The City of Westminster is also an Inner London borough holding city status. Greater London is governed by the Mayor of London and the London Assembly.

Henry III of England 13th-century King of England and Duke of Aquitaine

Henry III, also known as Henry of Winchester, was King of England, Lord of Ireland, and Duke of Aquitaine from 1216 until his death. The son of King John and Isabella of Angoulême, Henry assumed the throne when he was only nine in the middle of the First Barons' War. Cardinal Guala declared the war against the rebel barons to be a religious crusade and Henry's forces, led by William Marshal, defeated the rebels at the battles of Lincoln and Sandwich in 1217. Henry promised to abide by the Great Charter of 1225, which limited royal power and protected the rights of the major barons. His early rule was dominated first by Hubert de Burgh and then Peter des Roches, who re-established royal authority after the war. In 1230, the King attempted to reconquer the provinces of France that had once belonged to his father, but the invasion was a debacle. A revolt led by William Marshal's son, Richard, broke out in 1232, ending in a peace settlement negotiated by the Church.

Nevertheless, the idea of imposing liability on another despite a lack of culpability never really disappeared and courts have developed the principle that an employer can incur liability for the acts and omissions of an employee if committed by the employee in the course of employment and if the employer has the right to control the way in which the employee carries out his or her duties (respondeat superior). Imposition of vicarious liability in these circumstances has been justified on the following grounds:

Culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has normative force, for in nonlegal English, a person is culpable only if he is justly to blame for his conduct". Culpability therefore marks the dividing line between moral evil, like murder, for which someone may be held legally responsible and a randomly occurring event, like earthquakes, for which no human can be held responsible. One formulation of the concept is as follows:

A person is culpable if they cause a negative event and
(1) the act was intentional;
(2) the act and its consequences could have been controlled ; and
(3) the person provided no excuse or justification for the actions.

Respondeat superior is a doctrine that a party is responsible for acts of their agents. For example, in the United States, there are circumstances when an employer is liable for acts of employees performed within the course of their employment. This rule is also called the master-servant rule, recognized in both common law and civil law jurisdictions.

An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time they may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.

These justifications may work against one another. For example, insurance will increase the ability to do risk spreading, but will reduce incentives for exercise of control.

Modern vicarious liability

The general rule in the criminal law is that there is no vicarious liability. This reflects the general principle that a crime is composed of both an actus reus (the Latin tag for "guilty act") and a mens rea (the Latin tag for "guilty mind") and that a person should only be convicted if he or she is directly responsible for causing both elements to occur at the same time (see concurrence). Thus, the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender.

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions of England and Wales, Canada, Australia, India, Kenya, Pakistan, South Africa, New Zealand, Scotland, Nigeria, Ghana, Ireland, Israel and the United States of America. In the United States of America, some crimes also require proof of an attendant circumstance.

Latin Indo-European language of the Italic family

Latin is a classical language belonging to the Italic branch of the Indo-European languages. The Latin alphabet is derived from the Etruscan and Greek alphabets and ultimately from the Phoenician alphabet.

Vicarious liability in English law

The primary exception arises through statutory interpretation where the verb used to define the action in the actus reus is both the physical action of the employee and the legal action of the employer. For example, the activity of "driving" is purely a physical activity performed by the person behind the wheel. But when a cashier takes money as payment for goods, this is only the physical activity of selling. For goods to be sold, the owner of the goods must pass legal title to those goods. In default, the customer would commit the actus reus of theft. So the owner sells the goods at the same time that the employee takes the money. Similarly, only the holder of rights can grant a licence to another or permit another to do something that would otherwise have been unlawful. The verbs "possess", "control" and use may also have dual relevance depending on the context. Many of these are strict liability or regulatory offences, but the principle has been used to impose liability on a wide range of activities undertaken in a business or commercial environment.

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

Theft act of taking anothers property without permission or consent

In common usage, theft is the taking of another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, library theft, and fraud. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. Someone who carries out an act of or makes a career of theft is known as a thief. The act of theft is also known by other terms such as stealing, thieving, and filching.

In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.

Vicarious liability in the United States

This is generally applied to crimes that do not require criminal intent, e.g., those that affect the public welfare but which do not require the imposition of a prison term. The principle is that in such cases, the public interest is more important than private interest, and so vicarious liability is imposed to deter or to create incentives for employers to impose stricter rules and supervise more closely. In Commonwealth v. Koczwara, [2] the defendant was the licensed operator of a tavern which was found to have supplied minors with alcohol. The offence became one of strict or absolute liability when applied vicariously because of the need to protect weak and vulnerable members of society, and the omission of words such as "knowingly", "willfully" or "intentionally" in some of the offences indicated a legislative intent to permit this eventuality. In Staples v United States, [3] the defendant was initially convicted of being in possession of an unregistered machine gun. It was a rifle that had been modified for rapid fire, thereby putting it in violation of the National Firearms Act. The Supreme Court reversed and remanded the case. The majority held that the defendant needed actual knowledge about the nature of his weapon in order for him to be convicted. The dissenting opinion states that it was irrelevant that he did not know about the modification because statutes regulating dangerous weapons are public welfare statutes and can be interpreted to exclude the mens rea requirement of knowledge. Hence, as long as defendants knows that they are dealing with a dangerous product or device that places them in a responsible relationship to the public, they should recognize that strict regulations are more likely and assume that the United States Congress would intend to place the burden on the defendant to ascertain at his peril whether his conduct comes within the inhibition of the statute.

The courts generally convict employers for the illegal conduct of their employees even though the employers had no knowledge and so were not at fault. But in State v. Guminga [4] where a waitress served alcohol to a minor, the court found that the conviction of her employer violated the Due Process Clause and so was not constitutional under Minnesota law. Consequently, the defendant should only be given civil not criminal penalties. It is noted that this prohibition had been in force since 1905, which had given the legislature many years in which to reform the law. The majority rejected the argument of implied legislative intent. The issue of constitutionality in the form of a substantive due process clause requires a balancing of public interests and personal liberty. Although a statute making employers vicariously liable for their employee’s actions may serve the public interest by providing deterrence, the private interests affected (i.e. liberty, damaged reputation, etc.) outweigh the public interests, especially when there are alternative means to reach the same end of deterrence, say by civil fines or license suspension.

See also

Footnotes

  1. ↑ Greif
  2. ↑ 155 A.2d 825 (1959)
  3. ↑ 511 US 600 (1994)
  4. ↑ 395 NW2d 344 (Minn. 1986) 337

Related Research Articles

Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.

In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea, to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.

In law, attendant circumstances are the facts surrounding an event.

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee

English tort law

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal is a question of fact and degree:

Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability.

Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability (unconsciousness) or excuse (Schopp). Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act. For example, Esther Griggs in 1858 threw her child out of a first floor window believing that the house was on fire, while having a sleep terror. In 2002, Peter Buck, lead guitarist of the band R.E.M., was cleared of several charges, including assault, which resulted from automatism brought on by a bad interaction between alcohol and sleeping pills. In a 2009 case in Aberporth in west Wales, Brian Thomas strangled his wife in their camper van, also during a sleep terror, when he mistook his wife for an intruder. The defence of automatism is denying that the person was acting in the sense that the criminal law demands. As such it is really a denial-of-proof – the defendant is asserting that the offence is not made out. The prosecution does not have to disprove the defence as is sometimes erroneously reported; the prosecution has to prove all the elements of the offence including the voluntary act requirement. Automatism is a defence even against strict liability crimes like dangerous driving, where no intent is necessary.

In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states. The content of the law is imputed to all persons who are within the jurisdiction, no matter how transiently.

In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

<i>R v Miller</i>

R v Miller [1982] UKHL 6 is an English criminal law case demonstrating how actus reus can be interpreted to be not only an act, but a failure to act.

The following outline is provided as an overview of and introduction to tort law:

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties. This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd to better cover intentional torts, such as sexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee's duties, an employer can be found vicariously liable. The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of "enterprise risk".

Inchoate offences in English law are offences in England and Wales that cover illegal acts which have yet to be committed, primarily attempts to commit crimes, incitement to crime or encouraging or assisting crime, and conspiracy to commit crimes. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". It was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

References

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