Corporate Crime FAQs

How is corporate criminal liability established?

In recent years, three important pieces of legislation have sought to overcome the historical difficulty in establishing corporate criminal liability by creating specific corporate offences:

• Corporate manslaughter (Corporate Manslaughter and Corporate Homicide Act 2007).
• Failure to prevent bribery (Bribery Act 2010). 

• Failure to prevent the facilitation of tax evasion (Criminal Finances Act 2017).

For most other offences, there are two legal principles by which a company can be prosecuted for criminal offences: 

• Vicarious liability, which applies principally to offences where there is no requirement to prove any mental element and nothing further needs to be proven beyond the existence of the facts amounting to the contravention. A number of statutes set out what are essentially strict liability offences, but the use of this principle as a basis for corporate prosecutions is most commonly found in quasi-regulatory areas of criminal law such as health and safety and environmental law.
• The "identification principle" which applies to offences that include a mental element (such as intent, dishonesty or knowledge) within their definition.  The identification principle establishes that only the acts and state of mind of those who represent the directing mind and will of the company can be imputed to the company itself. Historically it has proven a hurdle that has often prevented companies from being held liable for the acts of individuals who work within them. 

Are there likely to be any changes to the law on corporate criminal liability? 

The Government issued a call for evidence relating to Corporate Liability for Economic Crime in 2017.  This focused on whether existing laws sufficiently hold companies to account for the criminal wrongdoing of their staff. In particular, it looked at whether successful convictions were being hindered by the current position where prosecutors needed to prove the “directing mind and will” of businesses undertaking criminal activity. The Anti-Corruption Strategy 2017-2022 set out that the government will consider the findings of this call for evidence and its 1 Year Update confirmed that it will respond to findings in Spring 2019. There has been no follow up on this.

The Serious Fraud Office has pushed for the failure to prevent model to be extended to fraud and money laundering for some time now and continues to do so. There are calls for this to include holding companies to account for failure to prevent human rights abuses.

A new corporate offence of failing to prevent the facilitation of tax evasion, based on the existing offence of failure to prevent bribery was introduced under the Criminal Finances Act 2017. This came into force on 30 September 2017. HMRC has recently focused on improving the procedure to self-report.  For a company to be guilty of the offence there must be proof of tax evasion to the criminal standard of proof - beyond reasonable doubt - but a prosecution and conviction of the individual taxpayer is not required. There will be a "reasonable procedures" defence: that reasonable procedures were in place or it was unreasonable to have them.

What about the position of individuals when companies are investigated and prosecuted? 

The particular legislation under which the prosecution has been brought will determine which positions within a company are at risk of prosecution, though typically it will apply to directors and other senior officers and managers. As well as the substantive offences including fraud, false accounting misleading the market etc, there are over 400 statutes covering a range of economic and other activity that allow for individuals to be prosecuted because they have participated in criminal offending through consent, connivance or neglect. 

Where a person is convicted on this basis they are convicted of the offence of which it is said the company was guilty, although it is important to note that no conviction of the company is necessary to found the prosecution of one of its officers. All that is required is that the commission of the offence by the company is proven to the necessary standard, including the disproving of any corporate defence that may apply. 

The DPA scheme enables a company to negotiate a DPA, but a prosecution nonetheless takes place of officers whose consent, connivance or neglect is said to be attributable to the company's offending. Frequently a term of the DPA will include that the company assists in such a prosecution.

In August 2019,  the SFO published Corporate Co-operation Guidance which sets out how the SFO assesses co-operation from business entities and the potential benefits of such co-operation. 

Since part of the negotiation of a DPA involves drafting an agreed statement of facts giving the full particulars relating to each alleged offence, it is likely to include the role played by particular individuals. There may well be a conflict between the interests of the company and its senior officers. Lawyers advising the company will have to approach this issue carefully.

Further information

If you have any questions relating to corporate crime, please contact a member of our team.

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