Vicarious liability criminal: Encyclopedia - Vicarious liability criminal

Vicarious liability (criminal)

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. For the civil law system, see vicarious liability. For liability attributed to a corporation, see corporate liability. For liability between joint principals, see common purpose.

Vicarious liability criminal - 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 retailiation 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 heterogenous, 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 system and to appoint a sherrif 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" (see Greif for a detailed discussion).

Nevertheless, the idea of imposing liability on another despite a lack of culpability has remained a tempting common law possibiliy and courts have evolved the principle that an employer can incur liability for the acts and omissions of an employee if committed in and during the course of employment and the employer has the right to control the way in which the employee carries out his or her duties. Although the outcome is inequitable, it has been justified because:

• the threat of liability is a spur to accident prevention. The assumption is that rational employers will take steps to ensure that employees avoid injuring third parties if the "penalties" are serious enough. But, the greater the monitoring and control exercised over the workers, the more an employer assumes the risk of the worker's conduct. Rational employers might choose not to supervise and plead ignorance of their rogue workers' activities or increasingly rely on independent contractors for sensitive operations and processes.
• ensuring that there is adequate compensation for injured third parties is socially desirable (the so-called "deep pocket" justification). The problem is that, as the insurance industry developed, employers could transfer the risk for an ever smaller premium payment and ignore the threat to capital.
• even without the insurance industry, the employer passes on the cost of compensation to the customers and clients. This is a distribution of loss or "risk spreading" justification and assumes that, when there are many customers, the price increases will be minimal. The assumption may not actually be justified if there are few customers or the business is close to insolvency.

Vicarious liability criminal - 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 act") and that a person should only be convicted if he, she or it 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.

Vicarious liability criminal - 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.

Vicarious liability criminal - Vicarious liability in the United States

This is generally applied to crimes 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, 155 A.2d 825 (1959) 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. Staples v United States 511 US 600 (1994), the defendant was convicted of being in possession of an unregistered machinegun. It was a rifle that had been modified for rapid fire, thereby putting it in violation of the National Firearms Act. The court said 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 pubic, they should recognise that strict regulations are more likely and assume that 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 395 NW2d 344 (Minn. 1986) 337 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.

Adapted from the Wikipedia article "Vicarious liability criminal", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki