Corporate Criminal Liability: Lessons from the Introduction of Failure to Prevent Offences

By Kathryn Westmore

It has long been difficult for prosecutors in the UK to hold corporates to account for criminal behaviour and, in particular, for economic crime-related misconduct. The ‘identification doctrine’ requires that only the acts of the person who represents the company’s ‘directing mind and will’ can be attributed to a company. At the same time, it is recognised that there are certain types of criminal behaviour that can only be carried out within a corporate structure, and which are carried out for the benefit of that corporate entity. Therefore, it is inherently problematic that it is difficult to bring corporate criminal prosecutions. The introduction of ‘failure to prevent’ offences are an attempt to overcome these difficulties. The basis of a failure to prevent offence is simple – to have any defence, an organisation needs to prove that it had ‘reasonable’ or ‘adequate’ procedures in place to prevent an individual associated with it from carrying out a criminal activity. The first failure to prevent offence was introduced in relation to bribery in 2010; two further failure to prevent offences followed in the Criminal Finances Act 2017 related to the facilitation of tax evasion....  

London:  Royal United Services Institute for Defence and Security Studies (RUSI), 2022. 19P.