Chapter 5. Criminalising Business Activities

• Pages: 348-373

CHAPTER5

CRIMINALISING BUSINESS ACTIVITIES

The intersection of criminal law and commercial activities is an area of growing importance in

the governance of moder n society. While criminal law is not considered as a typical component

of business law, the commission of crimes by persons, both natural and juridical, in the pursuit

of commercial activities, requires examination in any contemporary exposition of the legal

framework within which the business sector operates. It is hardly surprising that, in the business

world, there are several activities that have attracted criminal sanction.

A crime is an act which the law, with appropriate penal sanctions, forbids. As prohibitions

are not enacted in a vacuum, there is usually some evil or injurious or undesirable eect upon

Reproduced with the permission of Stu’sViews

349Chapter5: Criminalising Business Activities

1 Ormerod, D, Smith and Hogan: Criminal Law, 2008, Oxford: Oxford University Press, p10.

2 Ormerod, Smith and Hogan, p10.

3 Ormerod, Smith and Hogan, p12.

4 Card, R, Card, Cross and Jones: Criminal Law, 2008, Oxford: Oxford University Press, p1.

5 Card, Card, Cross and Jones, p4.

6 Ormerod, Smith and Hogan, p45.

7 Card, Card, Cross and Jones, p42.

the public against which the law is directed. That eect may be in relation to social, economic

or political interests where the legislature finds it necessary to suppress the evil or safeguard

the interest threatened. Auseful starting point is the definition of a crime but, in attempting a

definition, what becomes apparent is the marked reticence by many writers to avoid such a task.

One viewpoint is that the concept of what is a crime is better defined by examining the charac-

teristics of a particular conduct rather than attempting a precise and all-embracing definition.

It has been observed that criminal conduct generally contains elements of a public wrong and a

moral wrong.1 With regard to a public wrong, crimes are generally considered to be ‘acts which

have a particular harmful eect on the public and do more than interfere merely with private

rights’.2 The ‘second characteristic of crimes which is usually emphasised is that they are acts

which are morally wrong’.3

The consequence of an act or omission that contains the characteristics of being a public

wrong and a moral wrong is the commission of a criminal oence. ‘A criminal oence is a legal

wrong for which the oender is liable to be prosecuted by or in the name of the State, and if

found guilty liable to be punished.’4 While breaches of contract or commission of torts may

result in actions being taken by persons against the oending party, a criminal oence attracts

the attention of the state which seeks to take action on behalf society in general. The American

Law Institute’s Model Penal Code provides a succinct analysis of the purpose of criminal law.

As enunciated by Card, the purposes of criminal laware:

(a) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens sub-

stantial harm to individual or public interests.

(b) To subject to public control persons whose conduct indicates that they are disposed to

commit crimes.

(c) To safeguard conduct that is without fault from condemnation as criminal.

(d) To give warning of the nature of conduct declared to be an oence.

(e) To dierentiate on reasonable grounds between serious and minor oences.5

To be found liable for a criminal oence, there is the need generally for two requirements

to be proven by the prosecutor beyond reasonable doubt, namely the actus reus and mensrea.

ACTUSREUS

Actus reus includes all the elements present in the definition of a crime except the mental state of

the person accused of committing the crime.6 One definition states thatthe:

expression actus reus can be summarized as meaning an act (or sometimes an omission or other

event) indicated in the definition of the oence charged togetherwith:

• any consequences of that act which are indicated by that definition;and

• any surrounding circumstances (other than references to the mens rea required on the part of

the defendant, or to any excuse).7