UK Companies May Face More Liability for 'Failing to Prevent' Crime

UK Companies May Face More Liability for 'Failing to Prevent' Crime

On 12 May, the British government announced that its Ministry of Justice would open a consultation on whether to extend the scope of the criminal offence under which a company (including banks) can be held liable for 'failing to prevent' an offence beyond its current scope of bribery and tax evasion.

If the scope of the offence is extended to other economic crimes, it is likely that acts such as fraud, including offences related to Value Added Tax, cheating the public revenue, and customs and excise; and offences related to money laundering would be included.

Historically, companies were liable for ciminal acts only if prosecutors could show that the person representing the 'directing mind and will' of the company had knowledge of the criminal conduct. This was hard to prove and in practice prosecutions were rare.

The position changed in 2010 with the passing of the Bribery Act which introduced the concept of criminal liability for companies that 'failed to prevent' corrupt activity. Under the Bribery Act, knowledge of the criminal activity was not required to mount a successful prosecution. A company was liable if defined criminal activity was performed by persons associated with the company, unless the company could show that it had 'adequate procedures' in place to prevent the activity. There have been several successful prosecutions under the Bribery Act.

The Ministry of Justice's consultation will consider whether to extend the range of offences, beyond those named in the Bribery Act, for a which a company can be liable if it fails to prevent them.

ABA Corporate Member Fieldfisher has produced a briefing on the proposed consultation. It can be read here.