Companies should be made criminally liable for employee fraud, says SFO's David Green

Out-Law News | 06 Jun 2013 | 4:25 pm | 2 min. read

Companies should be made criminally liable for failing to prevent fraud or theft by their employees, the director of the Serious Fraud Office (SFO) has said.

Speaking at a conference organised by law firm Baker & McKenzie, David Green proposed extending the criminal offence of failing to prevent bribery by employees or agents of a company to other corporate crimes. He said that the change would make it easier for the SFO, which investigates serious and complex fraud and corruption cases, to bring charges against companies.

"Only then would we be properly equipped to prosecute corporates rather than individuals," he said, in comments reported by the Financial Times.

"Such a change would assist in the application of [deferred prosecution agreements]: if a corporate can't be prosecuted, why should it agree to a DPA?" he said.

Other than for corporate manslaughter offences, to which a separate legal regime applies, companies can generally only be found criminally liable for the acts of employees or agents if the offender was a "directing mind" and the act was the "will of the company". Case law and guidance from the Crown Prosecution Service (CPS) limits this to actions by the Board of Directors, managing director and other senior officers who carry out management functions and speak and act as the company.

An exception to this general principle was established by the Bribery Act, which created a new offence of "failure to prevent" bribery by people working for or on behalf of a business. Since the Act came into force in July 2011, a company will be found responsible for bribery carried out by employees or agents unless it can show that it had "adequate procedures" designed to prevent bribery in place.

White collar crime expert Barry Vitou of Pinsent Masons, the law firm behind Out-Law.com, said that a change in the criminal law more generally would be a "radical shift" for the UK. However, it would be in line with the legal position in the US, he said.

"This is not the first time that the suggestion has been made that criminal law should change to make it easier to pin criminal liability on corporations. The Bribery Act was an important step in this direction," he said.

"Whether or not this change happens remains to be seen - however, in the wake of recent corporate scandals, the trend of increasing regulation and public appetite to see criminal justice meted out continues to build," he said.

From next year, prosecutors in England and Wales will be able to enter into DPAs with companies that admit to unacceptable corporate behaviour or economic crime. Where a prosecutor, such as the SFO or CPS, agrees to a DPA with a company it will be able to defer prosecution in exchange for a range of stringent conditions. These may include substantial financial penalties, the need to compensate victims and submitting to regular reviews and monitoring, depending on the circumstances of the case.

The Director of Public Prosecutions and SFO are due to publish a draft Code of Practice for Prosecutors on DPAs shortly.