Reforming the law of corporate criminal liability —could this be the biggest shake-up in a century?

Reforming the law of corporate criminal liability —could this be the biggest shake-up in a century?

Last week, the Law Commission published its long awaited consultation paper on whether, and how, the law relating to corporate criminal liability can be improved to capture and punish criminal offences committed by corporations, and their directors or senior management.

This follows increasingly vociferous calls for reform in this area and several attempts to introduce clauses to bills as they pass through Parliament, legislating for strict liability for ‘failing to prevent’ economic crime.

There are strong arguments for and against attributing the criminal acts of employees to a company, outside of the models that already exist.

Currently, the law requires a directing mind and will of a company to commit the acts forming an offence, with the requisite mental element, before that company may be liable under the criminal law. This pre-requisite has been around for over one hundred years and is known as the identification principle. Exceptions exist, of course, notably under section 7 of the Bribery Act 2010 and sections 45 and 46 of the Criminal Finances Act 2017. However, the government has shown itself to be reluctant to extend its reach over companies further, unless it can be sure that the weight of evidence is its favour.

The Law Commission has been tasked with coming up with options, beyond simply creating new offences. It is holding a series of seminars on its proposals (see consultation page).

At LexisPSL, we are monitoring these developments carefully, so keep an eye out for our news and insight!  

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About the author:

Gillian is an experienced litigator with a background in fraud, white collar crime, civil forfeiture and other litigation under the Proceeds of Crime Act. She also has experience of regulatory investigations. Gillian has advised clients in all aspects of criminal law but specifically in relation to fraud and corruption allegations, money laundering, and tax evasion.

At her previous firm (Byrne and Partners LLP), Gillian defended national and international proceedings brought by the SFO, FCA, HMRC, NCA and CPS as well as other regulatory bodies. She represented individuals facing serious and complex conspiracy to defraud and corruption allegations (R v Davies & Ors, R v Alstom & Ors) and prosecutions arising out of a number of high-profile Operations: Amazon, Wasabi, Pemberton, Odeum and Skijump. Prior to this, while at the Crown Prosecution Service and Revenue and Customs Prosecution Service, Gillian worked on a number of noteworthy general crime and proceeds of crime cases including R (on the application of Gujra) v CPS (discontinuing private prosecutions), R v L (2011) (jury composition), R v Auton & Ors (cannabis sentencing), RCPO v Taylor (warrants of commitment) and R v May (confiscation and enforcement).