UK Law and Practice Contributed by: Neil Swift, Jasvinder Nakhwal, Charlotte Tregunna and Rachel Cook, Peters & Peters
As set out above, the BA 2010 has a broad extrater - ritorial reach specifically provided for in Section 12 of the Act. For Section 1, 2 and 6 offences, conduct anywhere in the world can be tried in the Courts of England and Wales providing the person in question satisfies the “close connection” test. The Section 7 offence covers conduct anywhere in the world providing the entity is a “relevant commer - cial organisation”, ie, a UK-incorporated company or partnership or a company or partnership that carries on business in the UK. It does not matter whether the underlying bribery offence can be prosecuted in the UK. 3.3 Corporate Liability Establishing Criminal Liability Generally In general, to convict a person of a criminal offence, the prosecution must prove beyond a reasonable doubt that the person both: • committed the act prohibited by the offence (actus reus); and • had the requisite intentions when committing the act that make it an offence (mens rea). In cases of strict liability, the prosecution is not required to demonstrate mens rea. Companies, as artificial legal persons, do not have their own intentions. Such intentions may, however, be attributed to a company via the “identification prin - ciple”. Identification Principle A company can be held criminally liable using the identification principle for acts and omissions com - mitted by a natural person if that person is “identified” with the company. To be identified with the company, the person must be the “directing mind and will” of the company behind the offence. These persons are limited to the board directors, managing director and other “superior offic - ers who carry out functions of management and speak
and act as the company” ( Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1). Prosecutors will consider the constitution of the com - pany (with the aid of its memorandum, articles of asso - ciation and other company documents) when seeking to identify the “directing mind” of the company. In practice, this is a high threshold for establishing corporate guilt. This is particularly relevant to larger companies whose directors and senior officers may be far removed from the company levels where the criminal activity in taking place. As a result, it is like - ly easier to convict a smaller company of a criminal offence than a larger one. This discrepancy is currently under review by the Law Commission. In 2022, the Law Commission published a report detailing a set of options to redress the law in this area, which included introducing further “failure to prevent offences”. Reform Under the ECCTA 2023 The identification principle was modified by Section 196 of the ECCTA 2023. Under Section 196, if a senior manager of a corporate entity or partnership acting within the actual or apparent scope of their authority commits a “relevant offence”, the corporate entity is also guilty of the offence. A “relevant offence” is one listed in Schedule 12 of the ECCTA 2023 and includes several corruption offences such as theft, false accounting, money laundering, fraud and bribery. Applying the Identification Principle to the BA 2010 Offences Section 1, 2 and 6 offences For a company to be prosecuted for a Section 1, 2 or 6 offence, the requisite action and intention for each offence must be attributable to the persons at the company who are sufficiently senior to be held to be the “directing mind and will” of the company. Given the modifications made by Section 196 of the ECCTA 2023, if a senior manager of a corporate entity or part - nership acting within the actual or apparent scope of their authority commits a “relevant offence”, the cor -
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