For some time, a number of U.K. prosecutors, politicians, academics and others have advocated for the introduction of a specific corporate criminal offence in the U.K., for companies that fail to prevent fraud, money laundering or other economic crimes perpetrated by employees or other third parties on their behalf. David Green, the head of the U.K. Serious Fraud Office, the U.K. agency responsible for investigating and prosecuting serious or complex fraud and corruption, has been one of the most vocal supporters of the proposal . In the fall-out from the financial crisis, focus on recent high-profile criminal investigations into the alleged rigging of the London inter-bank offer rate (LIBOR) and foreign currency exchange rates amongst London banks has lead to increased support for the proposal in the U.K. Perhaps most significantly, Jeremy Wright, in his first official speaking engagement as the U.K.’s, new Attorney General, recently indicated that the Government was actively looking into the proposal. David Green, in turn, indicated in his speech at the same conference, and in an accompanying interview with the U.K.’s Telegraph newspaper, that the proposal was “gaining traction”. In this context, it seems increasingly likely that the proposal will take legislative form before too long and that it could attract sufficiently broad support to progress onto the U.K. statute books.. Currently, in order to successfully convict a company for a fraud offence in the U.K. prosecutors must show that the “directing mind and will” of the company (i.e., someone significantly senior to represent the company itself – likely a member of the board) had actual knowledge of the conduct in question. This establishes a high burden of proof for prosecutors, particularly in large multi-national companies (such as the banks under current scrutiny) where the board may be many-times removed from the individuals who might actually perpetrate such offences on behalf of the company. The proposed new offence would operate on a “strict-liability” basis, meaning that no knowledge would need be attributed to the company itself. A company would be automatically liable if it could be shown that an offence had been committed on its behalf — for example, by an employee or another third party that was representing the company or working for its benefit. A comparable offence already exists in Section 7 of the U.K. Bribery Act, for companies which fail to prevent a bribe being paid on their behalf (albeit, no corporate convictions have been brought under the Bribery Act to date). The proposed fraud offence would work in a similar way, and would, presumably, have an equivalent “adequate procedures” defense as is found in the Bribery Act. The defense would allow companies to escape liability, notwithstanding that a fraud offence had been committed on their behalf, if they could demonstrate that they had adequate compliance procedures in place designed to prevent such crimes being committed on the company’s behalf. These affirmative defenses, available to companies for implementing strong anti-fraud and anti-corruption compliance programs, reinforce the importance of good compliance practices in a climate of increased potential for corporate criminal liability and enforcement.
Geoff Martin is a Senior Associate at Baker McKenzie's Litigation and Government Enforcement practice group in Washington, DC. Geoff started his career in Baker McKenzie's London office in 2007 and moved to Washington DC in 2012. Geoff represents clients in matters before the federal government arising out of anti-corruption, trade sanctions, fraud, anti-money laundering, national security, and related enforcement actions. He also represents clients in civil and criminal matters in federal court. Geoff has extensive experience conducting internal investigations relating to such matters around the world.