ENGLAND & WALES Law and Practice Contributed by: John Kaye and Piers Desser, Carson Kaye
1.2 Burden and Standard of Proof The burden of proof in financial crime proceedings rests primarily on the prosecution. It is for the state (typically the Crown Prosecution Service (CPS), the Serious Fraud Office (SFO), or other relevant authority) to prove each element of the alleged offence in full. The defendant is presumed innocent unless and until proven guilty. The applicable standard of proof in criminal cases is “beyond reasonable doubt” (often explained to juries as being “sure” of the defendant’s guilt). This is a high threshold and reflects the seriousness of the criminal conviction. It applies to all core elements of finan - cial crime offences, including the act itself and the required mental state (such as intent, knowledge or suspicion). There are, however, important qualifications. In some circumstances, a defendant may bear an evidential or legal burden in relation to specific defences. For example, under the “failure to prevent” offences, such as failure to prevent bribery under the Bribery Act 2010 or failure to prevent the facilitation of tax evasion under the Criminal Finances Act 2017, the prosecu - tion must first prove that the underlying misconduct occurred and that it is attributable to an associated person. Once established, the burden shifts to the company to prove, on the balance of probabilities (the civil stand - ard), that it had “adequate procedures” (or “reason - able procedures”) in place to prevent such conduct. This is a true reverse legal burden. Similarly, in money laundering cases under the Pro - ceeds of Crime Act 2002 (POCA), once the prosecu - tion proves that property is “criminal property”, certain statutory defences must be raised and evidenced by the defendant, such as making an authorised disclo - sure. Strict liability is relatively rare in core financial crime offences but does arise in specific regulatory con - texts, particularly in sanctions enforcement and cer - tain market abuse offences. In these cases, liability may be established without proof of intent or knowl - edge, although statutory defences are often available.
Overall, while the prosecution bears the primary bur - den to the criminal standard, targeted reverse burdens and strict liability provisions play a significant role in the enforcement landscape, especially for corporate defendants and regulatory breaches. 1.3 Aiding and Abetting A person can be held criminally liable even if they did not carry out the main offence themselves. Secondary liability is well established and plays a significant role in financial crime cases, which often involve multiple actors. There are two principal routes. First, conspiracy (under the Criminal Law Act 1977) arises where two or more persons agree to pursue a course of conduct that will necessarily involve the commission of an offence. The offence is complete upon agreement; it does not require the substantive offence to be carried out. This is frequently used in complex fraud, bribery and mar - ket manipulation cases. Second, a person may be liable for assisting or encouraging an offence under the Serious Crime Act 2007. This applies where an individual intentionally assists or encourages another to commit an offence, or believes that their act will do so. The prosecution must prove both the act of assistance or encourage - ment and the requisite mental element. In addition, traditional principles of accessorial liability (aiding, abetting, counselling or procuring) continue to apply. In all cases, liability depends on knowledge and intention: mere association with a wrongdoer is not sufficient. 1.4 Limitation Periods Many serious financial crime offences, such as fraud, bribery and money laundering, are indictable offences and are therefore not subject to any statutory limitation period. They can be prosecuted at any time, reflect - ing their seriousness and often complex, long-running nature. By contrast, certain regulatory or summary- only offences (for example, some minor breaches under financial services or sanctions regimes) may be subject to a general six-month time limit from the date of the offence, unless extended by statute.
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