White Collar Crime - "failing to prevent" crime and corporate liability

It has been long established that companies can find themselves criminally liable for the misconduct of their employees. Health and Safety violations, or breaches of environmental law have resulted in corporate fines for decades. This principle, however, has seen recent expansion into white collar crime, which looks likely to continue under the new prime minister.

The largest step change came in 2010, when the Bribery Act was introduced. Section 7 of this Act created the novel offence of "failing to prevent bribery" within a company. For the first time, a company could be criminally liable for a rogue, corrupt employee if the company had not exercised sufficient control and management of its staff. The Serious Fraud Office has claimed its first major scalp in the Sweett Group PLC, who were ordered to pay a fine of £2.25 million early this year.

As a result of the increased risk exposure, bribery policies, management systems and training are becoming increasingly common in staff handbooks alongside the more traditional regulatory issues. This isn't hugely surprising given the large economic damage a conviction (or even an investigation) can do to a company and its brand.

This regime seems likely to continue, if not extend in the future. Prior to his resignation, David Cameron announced a consultation into extending executive responsibility for white collar crime. The scope of this consultation was likely to include new offences for failing to prevent tax evasion, money laundering, and fraud.

This policy had disappeared until being resurrected by Theresa May in recent weeks. The current prime minister has launched a review of corporate criminal law, which (alongside new checks on corporate pay, and worker representation), is likely to include the consideration of a broad new range of offences.

There has been little indication of what form these new offences will take; a common assumption is that a Bribery Act section 7 style wording will be used. If this comes to pass, we may find even more topics being covered in standard training and employee handbooks, and the requirement for corporate entities to monitor their own staff (and to catch and punish wrongdoers) will only increase.

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