ENGLAND & WALES Law and Practice Contributed by: John Kaye and Piers Desser, Carson Kaye
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles In England and Wales, “financial crime” is not a single statutory concept. It is best understood as a descrip - tive umbrella term used by regulators, prosecutors and practitioners to capture a range of offences involving dishonesty, abuse of position or misuse of the financial system for illicit gain. The core catego - ries typically include fraud (under the Fraud Act 2006), bribery and corruption (Bribery Act 2010), money laundering (Proceeds of Crime Act 2002), sanctions breaches (Sanctions and Anti-Money Laundering Act 2018 and related regulations), market abuse (Finan - cial Services and Markets Act 2000 (FSMA) and the UK Market Abuse Regulation (UK MAR)), tax evasion (including the Criminal Finances Act 2017 corporate offences) and cyber-enabled crime such as phishing or online investment fraud. While each offence has its own statutory basis, “financial crime” is widely used as a practical shorthand in enforcement, compliance and policy. Constituent Elements of Offences Most financial crime offences require proof of both a prohibited act (actus reus) and a culpable mental state (mens rea). For example, fraud by false representation requires (i) a false representation, (ii) dishonesty, and (iii) an intention to make a gain or cause a loss or risk of loss. Money laundering offences require dealing with “criminal property” while knowing or suspecting its criminal provenance. Bribery offences focus on offer - ing, promising or giving (or requesting or receiving) an advantage intending to induce improper performance. Each offence is defined precisely in statute and the prosecution must prove each element in full. Mental Elements: Intent, Recklessness and Negligence Intent is the dominant mental state in financial crime. However, many offences also capture knowledge or suspicion, particularly in money laundering, or reck - lessness, in certain market abuse contexts. The con - cept of dishonesty is fundamental and is assessed
using the objective test confirmed by the Supreme Court in Ivey v Genting Casinos , that being what ordinary people would consider dishonest given the defendant’s actual knowledge or belief of the facts. Negligence alone is rarely sufficient for criminal liability in this area, although it can be relevant in regulatory enforcement or in certain strict liability contexts. Attempt, Conspiracy and Other Inchoate Offences English criminal law recognises liability for incomplete or preparatory conduct. Attempt (under the Criminal Attempts Act 1981) arises where a person takes steps that are “more than merely preparatory” to committing an offence, with the requisite intent. Conspiracy (Crim - inal Law Act 1977) involves an agreement between two or more persons to pursue a course of conduct that will necessarily involve the commission of an offence. In the financial crime sphere, conspiracy charges are commonly used in complex fraud and bribery cases. Assisting or encouraging crime (Serious Crime Act 2007) also creates liability for secondary participation. Corporate Criminal Liability Historically, corporate liability in England and Wales relied on the “identification doctrine”, under which a company is liable only if the offence can be attributed to a person who represents its “directing mind and will” (typically senior management). This has posed challenges in large organisations. To address this, Par - liament introduced “failure to prevent” offences, which impose strict liability on companies unless they can show they had adequate procedures in place. These include failure to prevent bribery (Bribery Act 2010) and failure to prevent the facilitation of tax evasion (Criminal Finances Act 2017). The Economic Crime and Corporate Transparency Act 2023 further expands corporate liability by introducing a new “failure to pre - vent fraud” offence and broadening attribution rules for certain economic crimes, making it easier to hold large companies to account. Overall, the UK framework combines detailed statuto - ry offences with evolving principles of attribution and prevention, reflecting a strong policy focus on both punishment and corporate compliance.
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