New Statutory Tests of Corporate Criminal Liability in the UK: the CMCHA 2007 and the Bribery Act...

CORPORATE CRIMINAL LIABILITY AND COMPLIANCE PROGRAMS

VOLUME I

LIABILITY ‘EX CRIMINE’ OF LEGAL ENTITIES IN MEMBER STATES

EDITED BY

ANTONIO FIORELLA

COLLABORATORS

Nicola Selvaggi - Anna Salvina Valenzano - Enrica Villani

Scientific Direction

ROMA TRE UNIVERSITY: Antonio Fiorella (Project responsible) - Arturo Maresca - SAPIENZA UNIVERSITY OF ROME: Alfonso Maria Stile (Project responsible) - UNIVERSITÉ PARIS 1 PANTHÉON-SORBONNE OF PARIS: Stefano Manacorda (Project responsible) - Geneviève Giudicelli-Delage - UNIVERSIDAD DE CASTILLA-LA MANCHA: Luis Arroyo Zapatero (Project responsible) - Adán Nieto Martín

Estratto

JOVENE EDITORE 2012

This publication has been made with the financial support of the Criminal Justice programme of the European Commission (JLS/2008JPEN/009).

SCIENTIFIC RESEARCH UNITS:

ROMA TRE UNIVERSITY Prof. Antonio Fiorella (Project responsible); Prof. Arturo Maresca. Researchers: Dr. Nicola Selvaggi; Dr. Anna Salvina Valenzano; Dr. Enrica Villani; Dr. Micaela Vitaletti.

SAPIENZA UNIVERSITY OF ROME Prof. Alfonso Maria Stile (Project responsible). Researchers: Dr. Francesco Compagna; Dr. Vincenzo Mongillo; Dr. Maria Teresa Trapasso.

UNIVERSITÉ PARIS 1 PANTHÉON-SORBONNE OF PARIS Prof. Stefano Manacorda (Project responsible); Prof. Geneviève Giudicelli-Delage. Researchers: Prof. Haritini Matsopoulou; Prof. Raphael Parizot; Dr. Juliette Tricot.

UNIVERSIDAD DE CASTILLA-LA MANCHA Prof. Luis Arroyo Zapatero (Project responsible); Prof. Adán Nieto Martín. Researcher: Dr. Manuel Espinoza de los Monteros de la Parra.

DIRITTI D’AUTORE RISERVATI

© Copyright 2012 - ISBN 978-88-243-2145-7

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SECTION III

New statutory tests of corporate criminal liability in the UK: the Corporate Manslaughter and Corporate Homicide Act 2007

and the Bribery Act 2010

SECTION III.1

The Corporate Manslaughter and Corporate Homicide Act 2007

Vincenzo Mongillo

TABLE OF CONTENTS: 1. Manslaughter in English common law. – 2. Corporatemanslaughter in common law. Limits of the identification doctrine high-lighted by case law. – 3. The long gestation of the Corporate Manslaugh-ter and Corporate Homicide Act 2007. – 4. The new offence of corpo-rate manslaughter. – 5. The organisations to which the Act applies. –6. The basic elements of the corporate manslaughter offence. – 6.1. Rel-evant duty of care owed to the deceased. – 6.2. Management failure andthe role of senior management. – 6.3. Gross breach. – 6.4. Causation. –7. Penalties. – 8. The relationship between individual and corporatecriminal liability. – 9. Territorial scope of the CMCHA. – 10. Enforce-ment. – 11. Conclusions on the model of corporate liability adopted bythe CMCHA. – 12. First applications in case law.

1. Manslaughter in English common law

English law provides for two forms of homicide, both estab-lished in common law: murder, that is homicide committed withintent to kill or seriously injure, for which, in theory at least, theonly possible punishment is life imprisonment, and manslaughter,for which the punishment may range from a fine to life imprison-ment1.

1 See, for a thorough overview, J.R. SPENCER, L’homicide involontaire et la re-

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Moreover, there are two kinds of manslaughter: voluntarymanslaughter, that is basically murder but attenuated by certainmitigating circumstances2, and involuntary manslaughter, inwhich the offender lacks an intent to kill.

Involuntary manslaughter may in turn arise in three differ-ent categories: 1) manslaughter by an unlawful and dan gerousact (also known as constructive manslaughter); 2) mans laughterby subjective recklessness; and 3) manslaughter by gross negli-gence.

The Corporate Manslaughter and Corporate Homicide Act2007 (hereinafter, CMCHA) added a fourth category of involun-tary manslaughter: corporate manslaughter. Unlike the formsmentioned above, corporate manslaughter has a statutorygrounding.

This new ground of liability for corporations was developedby analogy to manslaughter by gross negligence, which requiresfulfilment of the following conditions, established by the Houseof Lords in the leading case R v Adomako: 1) the defendantowed a duty of care towards the victim; 2) the defendantbreached that duty of care; 3) the breach of the duty was so se-rious as to amount, objectively, to gross negligence, i.e. conductthat fell well short of what could be expected of a reasonableperson in the same circumstances; 4) and the breach of dutycaused the death of the victim (causal link)3.

sponsabilité des personnes morales et de leurs dirigeants: le mouvement pour la réformeen droit anglais, in Le droit pénal - à l’aube du troisième millénaire: mélanges offerts àJean Pradel, Paris, 2006, pp. 915 et seq.; D. ORMEROD, Smith and Hogan Criminal Law,13th ed., 2011, pp. 505 et seq.

2 The partial defences to murder are set out, most recently, in the Coroners andJustice Act 2009: loss of control (ss. 54-56), diminished responsibility (s. 52), suicidepact (s. 59). See D. ORMEROD, above at fn 1, pp. 505 et seq.

3 R v Adomako, 1995, 1 AC, pp. 171 et seq., and in particular pp. 183-185,wherethe House of Lords affirmed the compatibility of involuntary manslaughter and grossnegligence. In general, on the confused and complex nature of criminal liability for ne-gligently causing death or injury in English law, see J.R. SPENCER - M.A. BRAJEUX, Cri-minal liability for negligence - a lesson from across the Channel?, in International &Comparative Law Quarterly, 2010, pp. 1 et seq.

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2. Corporate manslaughter in common law. Limits of the identi-fication doctrine highlighted by case law

Until the entry into force of the CMCHA, the conviction ofa corporation for manslaughter required, pursuant to the identifi-cation theory, the commission of an offence by an individual de-scribable as the “directing mind and will” of the company (i.e. adirector or comparable senior official). Such an offence, includ-ing the mens rea of the perpetrator (in the case of manslaughter,gross negligence) could then be imputed to the company4.

The shortcomings of the identification test emerged in thecontext of criminal liability for manslaughter, in particular fordeaths and personal injuries of workers and consumers5. Espe-cially in large companies with a diffuse management structure, itis often very difficult to identify a single individual with suffi-cient seniority to be considered the controlling mind of the or-ganisation, who can be charged with the commission of, or par-ticipation in, the crime6. Furthermore, in relation to preventingwork-related injuries and illnesses, many responsibilities are del-egated to junior managers, certainly not identifiable as the or-ganisations’ “alter ego”7.

This is confirmed by Anglo-Welsh case law. Of the thirty-fourproceedings commenced between 1992 and 2005 against organi-sations for workplace deaths, only seven resulted in a conviction8:

4 Attorney-General’s Reference (No. 2 of 1999) [2000] 3 All ER 182.5 A. PINTO - M. EVANS, Corporate criminal Liability, London, 2008, p. 219, 221

et seq.6 As stated in J. GOBERT - M. PUNCH, Rethinking Corporate Crime, London,

2003, p. 63, “[t]he identification doctrine propounds a test of corporate liability thatworks best in cases where it is needed least and works worst in cases where it is nee-ded most” (i.e., in large corporations).

7 Nonetheless, if the junior executive’s authority has been delegated by a ‘direc-ting mind’, the company may still be liable. See Tesco Supermarkets Ltd v Nattrass[1972] A.C. 153.

8 Home and Affairs and Work and Pensions Committees, House of Commons,Parliament of the United Kingdom, Draft Corporate Manslaughter Bill: First Joint Report of Session 2005-06 (HC 540 I-III), vol. 1, pp. 7-8.

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a negligible number compared to the number of workplacedeaths (3,425) that took place in the time period considered9.Moreover, in these cases the organisations found guilty were ofsuch limited size that it was particularly easy to identify a “di-recting mind” deserving criminal blame10. In R v. Kite, a 1994case, the director of a one-man company specialising in the or-ganisation of adventure holidays for children was found guilty ofmanslaughter by gross negligence for the death of four youthswho fell overboard during a boat expedition: in this case, con-sidering the director as the directing mind of the company waseasy11; however, “it is difficult to argue that the company’s con-viction added much to that of Mr Kite”12.

Instead, the chances of success in prosecuting a large-sizedcompany for workplace deaths and injuries were largely limitedto the strict liability offences established in the Health and Safetyat Work Act 1974, as illustrated in cases involving two of themost serious disasters in recent British history13. The first arosefollowing the capsize on 6 March 1987 of the Herald of Free En-

9 Health and Safety Commission, Statistics of Fatal Injuries, 2004/05, 2005. Onthe reasons for the scarcity of proceedings for manslaughter for workplace-relateddeaths, also see C.M.V. CLARKSON, Corporate Manslaughter: Need for a Special Of-fence?, in C.M.V. CLARKSON - S. CUNNINGHAM (eds.), Criminal Liability for Non-Ag-gressive Death, Hampshire, 2008, pp. 83-84.

10 D. ORMEROD - R. TAYLOR, The Corporate Manslaughter and Corporate Homi-cide Act 2007, in CrimLRev, 2008, pp. 589 et seq., p. 592.

11 R v Kite and OLL Ltd, Winchester Crown Court, 8 December 1994: see LAW

COMMISSION, Report No. 237, Legislating the Criminal Code: Involuntary ManslaughterLegislating the Criminal Code: Involuntary Manslaughter, 1996, pp. 82 et seq. Otherexamples of small entities’ convictions are: R v Jackson Transport (Ossett) Ltd and Jack-son, reported in Health and Safety at Work, November 1996, p. 4; Great WesternTrains Co, unreported, June 30, 1999, CCC; R v Roy Bowles Transport Ltd, in The Ti-mes, 11 December, 1999.

12 C. WELLS, Corporations and Criminal Responsibility, New York, 2001, p. 115.13 C. WELLS, above at fn 12, pp. 46 et seq., 106 et seq.; J. GOBERT - R. PUNCH,

above at fn 6, pp. 42 et seq. About other disasters and tragedies in the ‘80s and ’90s,such the Clapham rail crash, the Piper Alpha oil rig explosion, the King’s Cross fire,see A. ASHWORTH, Principles of Criminal Law, 6th ed., Oxford, 2009, p. 114; C.M.V.CLARKSON, Kicking Corporate Bodies and Damning Their Souls, in The Modern Law Review, 1996, n. 4, pp. 557 et seq.


terprise, owned by the P&O Ferries company, off the port ofZeebrugge. The ferry sank after the bow doors were left open,with the result that 192 people were killed14. A formal investiga-tion conducted under s. 55 of the Merchant Shipping Act 1970(the Sheen report) concluded that “from top to bottom the bodycorporate was infected with the disease of sloppiness”15.Nonetheless, at the trial it could not be proved that the risks ofopen-door sailing were obvious to any of the five most senior ex-ecutives16; so “the Crown was not in a position to satisfy the doc-trine of identification”. Subsequently, the Court of Appeal up-held both the theoretical possibility of prosecuting a companyfor gross negligence manslaughter17, and that of acquitting thecompany involved for failing to satisfy the identification test18.

The second case concerned the Southall rail crash of 19September 1997, in which seven people lost their lives and an-other 150 were injured. Here too, serious shortcomings in thesafety systems of the trains belonging to the Great Western Com-pany, especially the failure of the Automatic Warning System(AWS) and of the Automatic Train Protection (ATP); however,no one individual, who could be considered the directing mindof the company, could be identified and held liable19. On appeal,

14 For a brief overview of the facts, see A. PINTO - M. EVANS, above at fn 5, p.219-224.

15 Department of Transport, The Merchant Shipping Act 1894, HMV Herald ofFree Enterprise, Report of Court No 8074 (Sheen Report), London: HMSO, § 14.1.

16 This was the standard required at the time of the P&O case for a sentence forinvoluntary manslaughter (MPC v Caldwell [1982] AC 341 and Lawrence [1982] AC510, as applied by the House of Lords to the crime of manslaughter in Seymour [1983]2 AC 495). As mentioned above, with Adomako [1995] 1 AC 171, manslaughter bygross negligence also came into existence.

17 See P&O European Ferries Ltd. (1991) 93 Cr. App. R 72.18 The prosecution also preferred to withhold criminal proceedings against the

two employees of the company identified, so as to avoid them becoming scapegoatsfor the dysfunction and negligence that pervaded the society at all levels.

19 R. v Great Western Trains Company Ltd (unreported) (30 June 1999). Howe-ver, the company had to pay damages for £1.5 million for breach of the duty establi-shed by s. 3(1) of the HSWA 1974.

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the court upheld the acquittal of the company involved, empha-sising that the identification criterion had to be followed,sculpted as it was in Tesco v. Nattrass: “Unless an identified indi-vidual’s conduct, characterisable as gross criminal negligence,can be attributed to the company, the company is not, in the pre-sent state of the common law, liable for manslaughter”20.

3. The long gestation of the Corporate Manslaughter and Corpo-rate Homicide Act 2007

The very difficulty of charging a corporation withmanslaughter on the basis of the identification doctrine led tothe enactment of the Corporate Manslaughter and CorporateHomicide Act 200721.

The historical passage leading to Parliament’s enactment ofthis important reform was long and difficult. An account of themain events of this journey, so as to better comprehend the finalform of the new offence, especially in relation to the test for at-tributing liability to the organisation, is interesting.

I) As early as 1994, the Law Commission launched a con-sultation process on a series of reform proposals of the Britishlaw on involuntary manslaughter22. In 1996 the Commissionpublished a Report23 recommending, inter alia, the introductionof a new offence of corporate killing24, with the aim of eliminat-ing from the test of manslaughter the need to specify gross neg-ligence on the part of an identifiable senior figure within the or-ganisation (i.e. the identification doctrine), without at the sametime resorting to a general test of vicarious liability.

20 Attorney-General’s Reference, above at fn 4.21 See C. WELLS, Corporate Manslaughter: Why Does Reform Matter?, in South

African Law Journal, 2006, p. 646 et seq.; S. GRIFFIN, Corporate Manslaughter: A Radi-cal Reform?, in The Journal of Criminal Law, 2007, p. 151.

22 LAW COMMISSION, Consultation Paper No. 135: Legislating the Criminal Code:Involuntary Manslaughter, 1994.

23 LAW COMMISSION, Report No. 237, Legislating the Criminal Code: InvoluntaryManslaughter, 4 March 1996.

24 LAW COMMISSION, above at fn 23, pp. 99 et seq.


As a consequence, the idea of basing corporate liability onthe existence of systemic failings, and not simply operationalnegligence, in the company’s management of safety developed.The failings were to be examined in relation to the kind of con-duct that can incur liability (organisational-management behav-iour, instead of solely operational), rather than to the status ofthe physical person or persons responsible for them25.

In an attempt to find “a way of identifying that conductwhich can properly be attributed to” the corporation, the LawCommission adopted an approach based on the criterion of or-ganisational fault, expressed, in practice, by management fail-ure26. Under the Law Commission’s recommendations, “a deathshould be regarded as having been caused by the conduct of acorporation if it is caused by a failure, in the way in which thecorporation’s activities are managed or organised, to ensure thehealth and safety of persons employed in or affected by those ac-tivities (referred to as a “management failure” for short)”27. Inadopting this approach, the Law Commission drew inspirationespecially from employers’ common law obligation to ensure thesafety of their employees, and, in particular, its specific compo-nent, the duty to ensure a safe system of work28.

It must be added that, on the view of the Law Commission,not just any management failure would do: “a corporation would

25 In support of this view, see C.M.V. CLARKSON, above at fn 9, p. 94, accordingto whom the Law Commission’s approach, unlike the final text, “placed the focuswhere it should be: on the activities and organisational practices of the company”.

26 LAW COMMISSION, above at fn 23, § 8.8, p. 101, § 8.34, p. 110. Of course, theLaw Commission did not ignore that it may be difficult to draw a clear distinction inpractice, as proven by the case law on employer liability: LAW COMMISSION, above at fn23, § 8.23, p. 106. See C. WELLS, The Corporate Manslaughter Proposals: Pragmatism,Paradox or Peninsularity, in CrimLRev, 1996, pp. 545 et seq., p. 553, who defined theLaw Commission’s initial proposal as “daring and innovatory”. For an extremely criti-cal view on this proposal, see P.R. GLAZEBROOK, A Better Way of Convicting Businessesof Avoidable Deaths and Injuries?, in Cambridge Law Journal, 2002, p. 405 et seq.

27 LAW COMMISSION, above at fn 23, 8.35(4), pp. 105, 110.28 LAW COMMISSION, above at fn 23, pp. 103 et seq., in which reference was

made, inter alia, to Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, 84.

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be liable only in extremely limited circumstances, namely whereits conduct fell far below what could reasonably be expected ofit in the circumstances”29.

Finally, as for causation, “it should be possible for a man-agement failure on the part of a corporation to be a cause of aperson’s death even if the immediate cause is the act or omissionof an individual”30.

All these conditions were included in the language of thenew corporate offence, set out at s. 4 of the draft Bill: “A corpo-ration is guilty of corporate killing if - (a) a management failureby the corporation is the cause or one of the causes of a person’sdeath; and (b) that failure constitutes conduct falling far belowwhat can reasonably be expected of the corporation in the cir-cumstances. (2) For the purposes of subsection (1) above - (a)there is a management failure by a corporation if the way inwhich its activities are managed or organised fails to ensure thehealth and safety of persons employed in or affected by those ac-tivities; and (b) such a failure may be regarded as a cause of aperson’s death notwithstanding that the immediate cause is theact or omission of an individual”.

II) Initially, the British government did not pay much atten-tion to the Law Commission’s work, but then a number of high-profile cases, and in particular the above-mentioned Southalltrain crash, restored interest in the subject. In the wake of theemotional reactions to the acquittal of the company involved inthe accident and the consequent discrediting of the identifica-tion doctrine in English public opinion, in May 2000 the Gov-ernment published a Consultation Paper based on the LawCommission’s recommendations31.

However, a Draft Bill on the specific crime of corporatemanslaughter was only published on 23 March 200532. The pro-

29 LAW COMMISSION, above at fn 23, § 8.34, p. 110, pp. 100 et seq.30 LAW COMMISSION, above at fn 23, pp. 8, 112, 128.31 Reforming the Law on Involuntary Manslaughter: the Government’s Proposal,

2000.


ject supplemented the condition of management failure with theneed to ascertain the organisation’s senior management’s respon-sibility for the failure. This was because the new offence soughtto criminalise “truly corporate failings in the management ofrisk, rather than purely local ones”, and the reference to seniormanagers functioned to focus upon the shortcomings that af-fected the organisation at a sufficiently high level, to be able todeem these as pertaining to the organisation as a whole33.

The Draft Bill was submitted to the Home Affairs and Workand Pensions Committees of the House of Commons34 for pre-liminary scrutiny. In its Report, published in December 2005, theCommittees made several observations, expressing inter alia dis-approval for the reference to senior managers, in the firm beliefthat this would have generated interpretive uncertainty, encour-aged the delegation of responsibility to junior managers and pre-sented the same obstacles to prosecution of corporations posedby the identification doctrine35. The Committees thus recom-mended that the Home Office devise a test based – according tothe Law Commission’s proposal – “on the concept of a ‘manage-ment failure’, related to either an absence of correct process oran unacceptably low level of monitoring or application of a man-agement process”36.

III) The Government did not consider the Report’s observa-tions to be decisive, publishing a Reply in March 200637, in

32 Home Office, Corporate Manslaughter: The Government’s Draft Bill forReform, Cm 6497, March 2005.

33 Home Office, above at fn 32, § 14, p. 9. For a penetrating criticism, see C.WELLS, above at fn 21, pp. 655 et seq.; C.M.V. CLARKSON, Corporate manslaughter: Yetmore government proposals, in CLR, 2005, pp. 677 et seq., pp. 688-689.

34 One of the two Houses of British Parliament.35 Home and Affairs and Work and Pensions Committees, above at fn 8, pp. 37-

41. It is worth noting that Celia Wells and Chris Clarkson were “special advisers” tothe Home and Affairs and Work and Pensions Committees’ scrutiny of the draft Bill.

36 Home and Affairs and Work and Pensions Committees, above at fn 8, § 169,p. 44.

37 Secretary of State for the Home Department, Draft Corporate ManslaughterBill: Government Reply to the First Joint Report from the Home Affairs and Work andPensions Committees Session 2005-06, Cm 6755.

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which it highlighted, among other things, that the reference tosenior management had the sole function of avoiding that an or-ganisation could be called to answer for violations occurring atits lowest levels.

IV) The First Reading of the Corporate Manslaughter Bill inthe House of Commons took place in July 2006. However, notall necessary stages were completed during the Parliamentarysession of 2005-2006, such that the draft Bill was reintroduced inNovember 2006 and finally approved in 2007.

4. The new offence of corporate manslaughter

The Corporate Manslaughter and Corporate Homicide Act2007 received the Royal Assent on 26 July 2007 and most of theAct entered into force on 6 April 200838.

It introduced a new statutory offence applicable only to or-ganisation, called corporate manslaughter in England, Wales andNorthern Ireland, and corporate homicide in Scotland.

The innovation abolished the common law offence ofmanslaughter by gross negligence for organisations (see s. 2039).Nevertheless, it did not exclude the possibility, however unlikely,of convicting an organisation – under the identification doctrine– for the other common law form of involuntary manslaughter,namely unlawful act manslaughter40, and did not exclude the

38 See The Corporate Manslaughter and Corporate Homicide Act 2007 (Com-mencement No. 1) Order 2008. The Corporate Manslaughter and Corporate Homi-cide Act 2007 (Commencement No 2) Order 2010 brought s. 10 of the Act (relatingto publicity orders) into force on 15 February 2010. The Corporate Manslaughter andCorporate Homicide Act 2007 (Commencement No. 3) Order 2011 brought s. 2(1)(d)of the Act (duty owed to a person in custody etc. to be a relevant duty of care) intoforce on 1st September 2011.

39 Indeed, s. 20 establishes that “[t]he common law offence of manslaughter bygross negligence is abolished in its application to corporations, and in any applicationit has to other organisations to which section 1 applies”.

40 D. ORMEROD, above at fn 1, p. 566. An example is the case where a company


possibility that an organisation may be held liable for the new of-fence as well as for those established by the HSWA 1977 (s. 19).

The new criterion for finding criminal liability in violationof the CMCHA is limited, thus, to cases involving death ofworkers, consumers or other individuals caused by the activitiesof an organisation; the Act fails entirely to address the quantita-tively more significant sector of workplace personal injuries41.

5. The organisations to which the Act applies

The new Act’s name is misleading as to the types of bodiesthat can be found guilty of the new crime; indeed, the Act’sscope is not limited to corporations or to profit-making institu-tions42, but also includes some de facto organisations and somepublic bodies (s. 1(2)).

In particular, the organisations to which the Act applies in-clude:

a) corporations43, such as trading companies or NHS trusts.b) a wide range of public bodies, specifically government

departments (such as the Department of Transport and the De-partment of Health) and the other bodies exhaustively listed inSchedule 1;

c) police forces;

director encourages an employee to set fire to the company’s premises to fraudulentlyobtain insurance payouts, but causes the death of an individual who was in the buil-ding at the time.

41 For a critical view, see J. GOBERT, The Corporate Manslaughter and CorporateHomicide Act 2007 - Thirteen Years in the Making but was it Worth the Wait?, in Modern Law Review 71(3), 2008, p. 414.

42 In profit-making institutions, it is the very pursuit of profit that reveals a po-tential for criminality, as cuts in safety measures may be made to enhance the com-pany’s profits.

43 In accordance with s. 25, the term “corporation”, as mentioned in s. 1(2)(a),does not include sole corporations (i.e. corporations composed of only one naturalperson), but rather any body corporate, anywhere incorporated (a specification thathas important consequences for foreign companies operating in the UK).

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d) as for unincorporated bodies: partnerships44, tradeunions and employers’ organisations, as long as they act as em-ployers45.

Section 11 expressly abolishes Crown Immunity in this re-gard.

Some exemptions are provided, for: certain acts or decisionsof a public authority involving public policy decisions or occur-ring in the exercise of exclusively public functions (s. 3); militaryactivities (s. 4); certain police (e.g. terrorism, civil unrest) andlaw enforcement activities (s. 5); emergencies (s. 6); child-protec-tion and probation functions (s. 7).

6. The basic elements of the corporate manslaughter offence

Briefly, there are five basic elements of the new offence, asset out in s.1; all must be proven by the prosecution beyond anyreasonable doubt. The elements are:

1) the legal person must owe a duty of care towards the de-ceased;

2) the duty must have been grossly breached;3) the gross breach must attributable to the way in which its

activities are managed or organised;4) the way in which the organisation’s activities are managed

or organised by senior management must constitute a substantialelement of the gross breach of the duty of care;

5) the death must have been caused by the way in which organisation’s activities are managed or organised.

44 The term “partnership” includes, as per s. 25: “(a) a partnership within thePartnership Act 1890 (c. 39), or (b) a limited partnership registered under the LimitedPartnerships Act 1907 (c. 24), or a firm or entity of a similar character formed underthe law of a country or territory outside the United Kingdom”. In substance, a part-nership is an unincorporated profit-making institution with not more than 20 partners.

45 The extension to unincorporated organisations received criticism from somescholars: see G.R. SULLIVAN, Corporate killing - Some Government Proposals, in Crimi-nal L.R., 2001, pp. 34 et seq.


6.1. Relevant duty of care owed to the deceased

The CMCHA also provides a more specific definition ofsome of these elements, beginning with the concept of the rele-vant duty of care that the organisation must have to the victim46.

As recalled by the Ministry of Justice, a duty of care “is anobligation […] to take reasonable steps to protect a person’ssafety”47.

S. 2(1) specifies that this concept includes most of the dutiesestablished by the law of negligence (both at common law and instatute law)48:

a) a duty owed to the organisation’s employees or other per-sons working or performing services for it (an example is the em-ployer’s duty to ensure safe workplaces for his/her employees);

b) a duty owed as occupier of premises49;c) a duty owed in connection with:1. the supply by the organisation of goods or services

(whether for consideration or not);2. the carrying on by the organisation of any construction or

maintenance operations;3. the carrying on by the organisation of any other activity

on a commercial basis; or4. the use or keeping by the organisation of any plant, vehi-

cle or other thing;d) a duty owed to a person who, by reason of being a person

46 This element, that appears to originate in R v Adomako, was ignored in the1996 Law Commission recommendations and in the 2000 Home Office’s consultationdocument.

47 MINISTRY OF JUSTICE, A Guide to the Corporate Manslaughter and CorporateHomicide Act 2007, October 2007, p. 8.

48 D. ORMEROD, above at fn 1, p. 568; R. MATTHEWS, Blackstone’s Guide to theCorporate Manslaughter and Homicide Act 2007, Oxford, 2008, pp. 31 et seq., 43 etseq.

49 As per s. 25, the term “premises” includes “land, buildings and moveablestructures”.

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within subsection (2), is someone for whose safety the organisa-tion is responsible50.

In other words, the new legislation does not create new du-ties for the organisation, but refers to the duties of care alreadyprovided for in the civil law of negligence51.

However, as per s. 2(6), two common law tort rules are notrelevant here: the first is the absence of a duty of care where peo-ple are jointly engaged in a criminal enterprise (ex turpi causanon oritur actio), and the second is where the other party ac-cepted a risk of harm (volenti non fit inuria)52.

The actual existence of a duty owed by the organisation is aquestion of law to be decided by the judge (s. 2(5)).

6.2. Management failure and the role of senior management

The unlawful conduct prohibited by the CMCHA consistsof a gross breach of a relevant duty of care owed to the deceaseddue to the way in which the organisation’s activities were man-aged or organised.

As stated in the CMCHA’s Explanatory Notes, this is thevery definition of management failure, although it may not ex-pressly appear among the elements of the offence53. The Ministryof Justice’s Guide establishes that the “[f]actors that might beconsidered will range from questions about the systems of workused by employees, their level of training and adequacy of equip-ment, to issues of immediate supervision and middle manage-

50 Subsection (2) basically refers to persons detained because suspected of an of-fence, or detained for a final sentence or for precautionary custody, to immigrants inshort-term holding facilities, detained patients, etc.

51 For a contrary view, on this condition, see J. GOBERT, above at fn 41, pp. 416et seq., according to whom it “simply provides defendants with another avenue for de-fecting the trial from its main objective of determining the role of the organisation inthe resulting death […]”.

52 R. MATTHEWS, Blackstone’s Guide, above at fn 48, pp. 53, 63, 68.53 Explanatory Notes to the Corporate Manslaughter and Corporate Homicide Act,

§ 14.


ment, to questions about the organisation’s strategic approach tohealth and safety and its arrangements for risk assessing, moni-toring and auditing its processes”, and, further, that not only the“formal systems for managing an activity within an organisation,but how in practice this was carried out” are also relevant54.

The definitive formulation of corporate manslaughter ap-pears to take into account, at least in part, the “holistic” ap-proach of the Law Commission’s original proposal. Indeed, thisproposal too focuses on the requirement of gross negligence bythe organisation in the management and organisation of its activ-ities, rather than on the fault of an individual directing mind(that can be ascribed to the organisation)55. However, unlike theoriginal text, and in accordance with the Home Office’s vision,the final wording also requires substantial56, albeit not necessar-ily exclusive, involvement of senior management in the seriousbreach of the duty of care57. According to s. 1(4), “senior man-agement” are “the persons who play significant roles in –

(i) the making of decisions about how the whole or a sub-stantial part of its activities are to be managed or organised, or

(ii) the actual managing or organising of the whole or a sub-stantial part of those activities”.

Thus, it is clear that to be able to establish exactly which in-dividuals belong to senior management, it is necessary to exam-ine each single organisation’s entire structure58. In any case, sincethe definition also takes into account the making of decisions in

54 MINISTRY OF JUSTICE, above fn 47, pp. 12 et seq. For an examination of com-pany compliance on the subject of health and safety, see M.G. WELHAM, CorporateManslaughter and Corporate Homicide Act. A Managers’ Guide to Legal Compliance,2nd ed., 2008.

55 See A. PINTO - M. EVANS, above at fn 5, p. 225.56 According to the parliamentary debates, ‘substantial’ means ‘large’ and ‘no-

teworthy’: Standing Committee B (House of Commons), Debate about the CorporateManslaughter and Corporate Homicide Bill, 1 October 2006, Session 2005-06.

57 As mentioned above, this condition was first introduced into the Bill in 2005.58 A. SCHNEIDER, Corporate Liability for Manslaughter - A Comparison between

English and German Law, in ZIS, 2009, n. 1, p. 31.

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a specific sector of the organisation’s activities (as e.g. a regionalmanager59, or a Head of division), the notion of senior manage-ment for the purposes of the CMCHA appears to be broaderthan the identification doctrine’s concept of “directing mind”60.

The intentio legis behind the reference to senior manage-ment (and therefore to a specific group of individuals within theorganisation) appears to be motivated by an aim to state clearlythat the organisation’s liability may arise only pursuant to seriousshortcomings in the strategic management of organisational ac-tivities (functions typical of senior management), excluding lia-bility for individual shortcomings of junior managers or individ-uals with mere supervisory (such as a shop manager or head ofunit) or solely executive functions.

However, some scholars maintain this specification to beharmful other than futile, as it risks perpetuating the practicalproblem traditionally inherent in the identification theory: theneed to identify, among those responsible for the harmful act, atleast one senior individual within the organisation61. Thus, ac-cording to a leading scholar in the topic, while the Law Commis-sion did not consciously intend to employ a term that wouldevoke “the failings of individuals who could be characterised asmanagers”, and focused exclusively on “systemic failure”, underthe Act “the prosecution will need to show that the errors, mis-calculations or mistakes of a person or persons who play a signif-icant role in the formulating and/or carrying out of organisationpolicy have made a substantial contribution to the breach givingrise to liability”62; such that in the final version of the CMCHA“one can see lingering echoes of the ‘identification’ doctrine”63.

59 MINISTRY OF JUSTICE, above at fn 47, p. 13.60 See A. PINTO - M. EVANS, above at fn 5, p. 234.61 A. PINTO - M. EVANS, above at fn 5, p. 235 [“the further ingredient of «senior

management failure» adds an unnecessary element which is likely to be difficult toprove in practice”, especially in larger companies].

62 J. GOBERT, above at fn 41, pp. 417 et seq.63 J. GOBERT, UK, in J. Gobert - A.M. Pascal, European Developments in Corpo-

rate Criminal Liability, London, 2011, p. 318.


Consequently, the new offence risks repeating the problemsof proof associated with the identification theory. If, on the basisof traditional criteria, it was necessary to ascertain the liability ofan individual that could be qualified as the directing mind of theorganisation, it is now necessary to answer the following thornyissues:

1) which positions fall within the category of senior manage-ment, and, in particular, which of these “play significant roles” indecision making, or in the managing or organising of the wholeor a substantial part of those activities64?;

2) when does the way in which activities are managed or or-ganised by senior management amount to a “substantial ele-ment” of the breach of the duty of care65?

In addition, there is a risk that the law may be easily cir-cumscribed by pre-emptively delegating safety responsibilities tojunior managers66. In this context, however, it has also been saidthat “such a delegation of power away from the senior manage-ment could in itself be seen as a management failure”67, i.e. a“substantial element” towards the breach of the duty of care; theMinistry of Justice’s opinion appears to agree with this68.

Despite these limits, other scholars have observed that theinnovations compared to the traditional identification theory arenevertheless clear. Other than the fact that the notion of senior

64 Cf. C.M.V. CLARKSON, above at fn 9, p. 93; P.R. GLAZEBROOK, above at fn 26,p. 411; C. WELLS, Corporate Criminal Liability in England and Wales: Past, Present,and Future, in M. PIETH - R. IVORY (eds.), Corporate Criminal Liability: Emergence,Convergence, and Risk, London-New York, 2011, p. 104.

65 On the vagueness of the expression “substantial element”, see A. SCHNEIDER,above at fn 58, p. 30.

66 J. GOBERT, above at fn 41, p. 429.67 See A. SCHNEIDER, above at fn 58, p. 30; A. PINTO - M. EVANS, above at fn 5,

p. 236.68 MINISTRY OF JUSTICE, above at fn 47, p. 14 (“failures by senior managers to ma-

nage health and safety adequately, including through inappropriate delegation of healthand safety matters, will therefore leave organisations vulnerable to corporate manslau-ghter or corporate homicide charges”).

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management is certainly broader than that of “directing mind”,the old criterion is now substituted with “what might be de-scribed as a qualified aggregation principle”69, a legitimation ofthe system of charging with responsibility that had traditionallybeen refused by English case law70. Indeed, the new test doesaway with the requirement to identify an individual in a seniorposition that caused the death with his or her seriously negligentconduct71, but, rather, admits the combination of “shortcomingsof a large number of individuals within the organisation as proofof an organisational shortcoming”72.

This interpretation was recently endorsed by the Law Com-mission in another consultation paper on “Criminal Liability inRegulatory Contexts”, according to which, pursuant to the CM-CHA, organisations may be charged with gross negligence by ag-gregating the “negligent conduct on the part of directors andemployees at all levels of a company”; the only restriction beingthat negligence on the part of senior management (i.e. on thepart of one or more senior managers together) must have played

69 D. ORMEROD - R. TAYLOR, above at fn 10, pp. 591-592.70 Compare this with Bingham J’s judgment in the re-examination of the verdict

of unlawful killing handed down by the inquest jury in the Herald of Free Enterprisecase: R. v H.M. Coroner for East Kent, ex parte Spooner [1989] 88 Cr. App. R. 10; R vStanley and others, 19 October 1990 (CCC No 900160); A-G’s Reference (No.2 of1999) [2000] QB 796.

71 M.V.H. HSAIO, Abandonment of the Doctrine of Attribution for Gross Negli-gent Test on the Corporate Manslaughter and Corporate Homicide Act 2007, in TheCompany Lawyer, 2009, n. 4, p. 111.

72 D. ORMEROD, above at fn 1, p. 571. For further observations of this innova-tion, see A. PINTO - M. EVANS, above at fn 5, p. 234 and J. GOBERT, above at fn 63, p.319. However, according to C.M.V. CLARKSON, above at fn 9, p. 94, the noveltyamounts to “little more than a broadening of the identification doctrine in that, in-stead of identifying one senior directing mind, one aggregates the actions and culpa-bility of several senior persons”; of a similar view is L.R.L.S. SUJANANI, What is the con-ceptual basis for saying that a corporation is at fault in relation to a particular outcome?,dissert., Cambridge, 2010, p. 41, for whom “the Act, whilst only modifying the identi-fication doctrine marginally, does so by drawing upon both aggregation and organiza-tional theory”.


an essential role in the gross negligence and, therefore, in thecausation of death73.

The same concept was expressed in the Ministry of Justice’sGuidance, in that “the Act does not require the prosecution toprove specific failings on the part of individual senior managers.It will be sufficient for a jury to consider that the senior man-agement of the organisation collectively were not taking ade-quate care, and this was a substantial part of the organisation’sfailure”74.

6.3. Gross breach

S. 1 establishes an additional, quantitative, criterion for at-tributing liability to the organisation: the management failuremust amount to a “gross breach of the relevant duty of care”.Unlike proof of the existence of a duty of care, this issue is de-cided by a jury (s. 8(1)).

According to the definition in s. 1(4)(b), “a breach of a dutyof care by an organisation is a ‘gross’ breach if the conduct al-leged to amount to a breach of that duty falls far below what canreasonably be expected of the organisation in the circum-stances”.

The main problem, in this respect, was to flesh out thiswording75. S. 8(2-3) establishes some parameters that the jury mustor may consider.

The jury must consider whether the evidence put beforethem is sufficient to prove that the organisation failed to fulfil itsobligations under the health and safety legislation76 in force, and

73 LAW COMMISSION, Criminal Liability in Regulatory Contexts: a Consultation Paper, n. 195, 2010, p. 107.

74 MINISTRY OF JUSTICE, above at fn 47, p. 14.75 As noted by J. GOBERT, above at fn 41, p. 417, referring to the general prac-

tice of such organisations, the risk would be an “indiscriminate lowering of industrialstandards”.

76 As clarified in s. 25, “‘health and safety legislation’ means any statutory provi-sion dealing with health and safety matters, including in particular provision contained

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relevant to the alleged violation. If so, the jury must decide: a)how serious that failure was; b) the likelihood of a risk of deathensuing.

As for what the jury may consider, the Act seeks to placevalue on – albeit not making any express reference to that effect– the criterion of corporate culture. Therefore, unlike in Aus-tralia, this criterion is “only of evidentiary significance”77 for as-certaining the organisation’s liability for corporate manslaughter.In particular, the jury may also consider: a) the “organisationalculture” of the organisation (corporate culture), and, especially,“the extent to which the evidence shows that there were atti-tudes, policies, systems or accepted practices within the organi-sation that were likely to have encouraged” the failure to complywith any health and safety legislation that relates to the allegedbreach, “or to have produced tolerance of it”; b) any guidanceon health and safety relevant to the alleged breach78.

The express list of factors “does not prevent the jury fromhaving regard to any other matters they consider relevant” (s.8(4)).

6.4. Causation

Finally, in relation to causation, the prosecution must provethat the violation was a significant – albeit not necessarily exclu-sive – cause of the death (s. 1(1)(a)).

According to the Explanatory Notes, “the usual principles ofcausation in the criminal law will apply to determine this ques-tion. This means that the management failure need not have

in the Health and Safety at Work etc. Act 1974 (c. 37) or the Health and Safety atWork (Northern Ireland) Order 1978 (S.I. 1978/ 1039 (N.I. 9))”.

77 Compare with J. GOBERT, above at fn 63, p. 319.78 S. 8(5): “health and safety guidance” “means any code, guidance, manual or

similar publication that is concerned with health and safety matters and is made or is-sued (under a statutory provision or otherwise) by an authority responsible for theenforcement of any health and safety legislation”.


been the sole cause of death; it need only be a cause (althoughintervening acts may break the chain of causation in certain cir-cumstances)”79.

Despite the clarification, this requirement too was criticisedby scholars, who highlighted the risk that shortcomings in man-aging security, attributable to senior management, may, in largeand multinational organisations, be considered too distant inspace and time from the harmful event, if the traditional test forascertaining the existence of a causal link is satisfied80.

7. Penalties

When an organisation is found guilty of corporatemanslaughter, the applicable punishment will first be a fine (s.1(6))81. The law does not specify a minimum or maximumamount for the fine.

Moreover, following a conviction, a court, on application bythe prosecution specifying the terms of the proposed order, mayissue a remedial order, ordering the organisation to take specificsteps to address the breach of the duty of care and other relatedproblems or inadequacies, within a specific timeframe (s. 9).

Under s. 10, a court may also issue a publicity order, requir-ing the organisation to publicise, in a specific manner: (a) thefact that it has been convicted of the offence; (b) specified par-ticulars of the offence; (c) the amount of any fine imposed; (d)the terms of any remedial order made.

Failure to observe the remedial order or the publicity orderconstitutes a separate offence under ss. 9(5) and 10(4).

To ensure the rationality and effectiveness of this punish-ment system, and of pecuniary penalties especially, a set of Sen-

79 Explanatory Notes, above at fn 53, § 15.80 J. GOBERT, above at fn 41, p. 419, also in light of the House of Lords’ decision

in R v. Kennedy (No. 2) [2007] UKHL 38, according to which “free and voluntary actsof informed adults of sound mind will ordinarily break a chain of causation”.

81 Civil compensation will be payable separately.

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tencing Guidelines were drafted. Following a Consultation Paperprepared by the Advisory Panel and a preliminary draft, defini-tive Guidelines were approved by the Sentencing GuidelinesCouncil on 27 October 2009 and entered into force on 15 Feb-ruary 201082.

In this respect, it is important to note that the SentencingAdvisory Panel had proposed rendering the CMCHA penalties(and those related to violations of the Health and Safety at WorkAct 1974) proportional to the organisation’s annual turnover. Inparticular, it was recommended to impose a fine amounting tobetween 1 and 10% of the organisation’s annual turnover upona verdict of corporate manslaughter, and of 0.25 and 4% ofturnover in case of death ensuing from the commission of healthand safety offences83.

The Sentencing Guidelines Council rejected this pro-portional model, stating that “a fixed correlation between thefine and either turnover or profit is not appropriate”84. Indeed,the Council maintained that: 1) the circumstances of defen-dant organisations and the financial consequences of the fine willvary too much, and could lead to companies structured in dif-ferent ways attracting fines that are vastly different; 2) a fixedcorrelation might provide a perverse incentive to manipulate theorganisational structure either to relieve the company of the fineor else significantly reduce its size.

82 SGC, Corporate Manslaughter and Health and Safety Offences Causing Death.Definitive Guidelines, 2010. See, on this point, DAVIES, Sentencing Guidance: CorporateManslaughter and Health and Safety Offences Causing Death - Maintaining the StatusQuo, in CrimLRev, 2010, pp. 402 et seq., who observes, with a critical spirit, that “theguidance […] very much maintains the status quo, failing to provide an identifiable ta-riff beyond the existing broad range of fines currently imposed”, and essentially repri-ses the indications provided in the leading case of R v Howe & Son Engineers Ltd[1999] 2 All ER 249.

83 Sentencing Advisory Panel, Advice to the Sentencing Guidelines Council, Sen-tencing for Corporate Manslaughter and Health and Safety Offences Involving Death,2009.

84 SGC, Corporate Manslaughter, above at fn 82, § 15.


The Guidelines’ underlying belief is that “fines must bepunitive and sufficient to have an impact on the defendant”85;substantially, significant fines should be imposed to act as deter-rents and in the public interest of avoiding loss of human life.

To achieve this objective, the calculation system for fines ismore detailed than that suggested by the Advisory Panel, as ittakes into account multiple factors.

In particular, acknowledging that the level of fine may varygreatly depending on the circumstances of each case, the Guide-lines state generally that:

a) the appropriate fine in case of conviction for corporatemanslaughter “will seldom be less than £.500,000 and may bemeasured in millions of pounds”;

b) on the other hand, for convictions for having causeddeath in violation of the HSWA, “the appropriate fine will sel-dom be less than £100,000 and may be measured in hundreds ofthousands of pounds or more”86.

The Guidelines seek to provide a matrix of evaluation ele-ments so that courts can reach the most appropriate fine giventhe facts and circumstances of each case.

(1) Seriousness of the offence (§ 6).Judges must first evaluate the seriousness of the offence,

taking into account:a) the foreseeability of serious injury;b) how far did the defendant fall short of the applicable

standard of care;c) how common is the breach in question in the organisa-

tion; in this connection, it is necessary to ask: how widespreadwas the failure to comply; and whether the breach in questionwas an isolated episode, or whether it belied systematic deviationfrom good practices across the defendant’s operations;

85 SGC, Corporate Manslaughter, above at fn 82, § 22.86 SGC, Corporate Manslaughter, above at fn 82, § 24 et seq. As usual, a plea of

guilty may lead to a sentence reduced by up to one-third.

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d) the degree of the organisation’s responsibility for the al-leged violation.

(2) Aggravating and mitigating factors (§§ 7-11).Once the seriousness of the offence has been ascertained, the

court must consider certain aggravating and mitigating, factors.Examples of aggravating factors are:a) more than one death, or very grave personal injury in ad-

dition to death;b) the failure to heed previous warnings or advice by public

officials such as the Inspectorate or by employees (especiallyhealth and safety representatives) or other persons;

c) cost-cutting at the expense of safety;d) the deliberate failure to obtain or comply with relevant li-

cences (at least where the procedure for obtaining the licence in-volves some degree of control), assessments or observations byindependent authorities with a health and safety responsibility;

e) injury to vulnerable persons, i.e. those whose personalcircumstances render them susceptible to exploitation.

The following non-exhaustive factors are likely, if present, toafford mitigation:

a) a prompt acceptance of responsibility on part of the or-ganisation;

b) a high level of co-operation with the investigating organs,beyond that which will always be expected;

c) genuine efforts to remedy the defect;d) a good health and safety record;e) a responsible attitude to health and safety, such as the

commissioning of expert advice or the consultation of employeesor others affected by the organisation’s activities.

According to the Sentencing Council, since corporatemanslaughter requires proof of gross breach of duty and the sub-stantial involvement of senior management, it is unlikely thatunauthorised acts performed by employees will significantly re-duce the organisation’s culpability.


(3) Financial information; size and nature of organisation (§§12-18).

As for the size and nature of the organisation, the Guide-lines state that, just as the small size of an organisation does notconstitute an extenuating circumstance in itself, the large size ofthe organisation does not by itself aggravate the organisation’s li-ability. In other words, the law provides that “the same standardof behaviour [must be expected from] a large and a small organ-isation”87.

However, the size of the organisation is not entirely irrele-vant. Although “a fixed correlation between the fine and eitherturnover or profit is not appropriate”88, in determining theamount of the fine, it is necessary to take into account the eco-nomic-financial resources of the organisation: turnover, profitand assets of the organisation must, therefore, be carefully ex-amined.

(4) Financial consequences of a fine (§§ 19-21).As for the financial consequences of a fine, § 19 states that

attention should be paid to its impact on employment (due tothe risk that innocent employees would also be affected) and tothe effect upon the provision of services to the public89; any neg-ative effects on shareholders90 and directors would instead be ir-relevant, as would be the possible changes in the prices chargedby the defendant (unless the organisation is a monopolistic sup-plier of public services), and the costs related to such further

87 SGC, Corporate Manslaughter, above at fn 82, § 12.88 SGC, Corporate Manslaughter, above at fn 82, § 15.89 Although in principle “a public organisation such as a local authority, hospi-

tal trust or police force must be treated the same as a commercial company where thestandards of behaviour to be expected are concerned, and must suffer a punitive finefor breach of them, a different approach to determining the level of fine may well bejustified” (§ 19(v)).

90 The clear assumption underlying this observation is that those who invest inthe shares of a company take the risk that its management will result in financial loss.

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sanctions (e.g. liability to pay civil compensation or the cost tomeeting any remedial order).

The Guidelines declare that in the case of large organisa-tions, the fine should be payable within twenty eight days. In thecase of a smaller or financially stretched organisation, paymentmay be dilated over a longer period. This may be especially nec-essary if organisations of limited means commit a serious of-fence, as an excessively heavy pecuniary penalty may force themout of the market.

If the organisation gained significant savings by committingthe offence, the fine will have to ensure that the profit thus ob-tained is removed, in addition to imposing an appropriate addi-tional penalty.

As for publicity orders, the Guidelines recommend that theyshould ordinarily be imposed in a case of corporate manslaugh-ter, including specification of the facts, the entity of the fine im-posed and the terms of any remedial order issued. The aim ofpublicity orders is to ensure that shareholders learn of the sen-tence; in this connection, the court must also evaluate whether afurther statement on the defendant’s website would be necessary.

8. The relationship between individual and corporate criminalliability

Liability of organisations for corporate manslaughter is en-tirely independent of the liability of the individuals who causedthe harmful event: to prosecute an organisation pursuant to theCMCHA, it is not necessary to institute proceedings or convictan individual.

Furthermore, although corporate liability may be accumu-lated with individual liability, the two subjects always respond in-dependently.

Indeed, corporate manslaughter is an offence exclusive tothe organisation: it cannot be committed by an individual in theorganisation’s (senior) management, neither as a principal nor as


a secondary party. This is clear from s. 18, according to which anindividual cannot be guilty of aiding, abetting, counselling orprocuring the commission of an offence of corporate manslaugh-ter. The offence of corporate manslaughter was not extended tothe individuals in positions of control within the organisation toavoid dissuading managers from taking on risk managementfunctions, especially in high-risk industries, out of fear of becom-ing the scapegoat for all security mishaps in the organisation91.

This aspect of the Act also generated much perplexity, bothduring parliamentary debates92 and among scholars. Indeed, itwas noted that “with its exclusive focus on organisational liabil-ity, Parliament appears to have lost sight of the fact that seniormanagers and directors are responsible for conceiving, formulat-ing, approving and implementing corporate policies, includingthose which turn out to be criminogenic”93.

However, it must be highlighted that, as clarified in the CMCHA’s Explanatory Notes, it is still possible to find “[a corpo-rate officers’] direct liability for offences such as gross negligencemanslaughter, culpable homicide or health and safety offences,where the relevant elements of those offences are made out”94. Itwas countered that “such a charge would be difficult to makestick”, given all the elements required pursuant to Adomako95.

Finally, it must be recalled that managers and directors mayalso be found guilty of violations of the Health and Safety at

91 See Home and Affairs and Work and Pensions Committees, above at fn 8,especially §§ 303 and 305.

92 See, for example, the opinion of Professor Lord Wedderburn of CharltonQ.C., HL Deb., col. 539 (February 5, 2007).

93 J. GOBERT, above at fn 41, p. 414. See also C.M.V. CLARKSON, above at fn 9, p.88 [“people are more amenable to deterrence than corporation”]; P.R. GLAZEBROOK,above at fn 63, p. 418 [“unless individuals are also proceeded against, «the punish-ment of corporations is of small relevance to the purposes of the criminal law»]; C.WELLS, above at fn 21, p. 661-662.

94 Explanatory Notes, above at fn 53, § 56.95 J. GOBERT, above at fn 63, p. 320. CLARKSON, above at fn 9, p. 87, states that

since 1989 only 22 company directors and entrepreneurs were convicted of manslau-ghter.

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Work Act 1974, that can be committed by legal as well as naturalpersons96. Furthermore, pursuant to s. 37(1) HSWA, if an of-fence under any of the relevant statutory provisions is committedby a body corporate with the consent, connivance or neglect ofone of its officers (i.e.: “any director, manager, secretary or othersimilar officer of the body corporate or a person who was pur-porting to act in any such capacity”), both may be prosecutedand punished for the same crime97.

9. Territorial scope of the CMCHA

As for the Act’s territorial application, the CMCHA adoptsa strict principle of territoriality and refers to the death occurredto establish when the crime of corporate manslaughter may beconsidered as having been committed in the territory of theUnited Kingdom.

Indeed, s. 28(3) states that the Act applies only if the harmresulting in death is sustained in the United Kingdom or equiva-lent places (“within the seaward limits of the territorial sea adja-cent to the United Kingdom”, “British registered ship”, etc.).

Thus, it appears that a parent company cannot be calledupon to answer for deaths occurring at foreign subsidiaries98.

10. Enforcement

The consent of the Director of Public Prosecutions is re-quired before proceeding against an organisation for corporatemanslaughter (s. 17); the requirement appears to apply to allprosecutions, whether initiated by the Crown or by a privateparty.

96 C.M.V. CLARKSON, above at fn 9, p. 87.97 The penalties for such crimes (both pecuniary and of imprisonment) have

been made stricter by the Health and Safety Offences Act 2008, that entered intoforce in early 2009.

98 J. GOBERT, above at fn 41, p. 433.


11. Conclusions on the model of corporate liability adopted by theCMCHA

Despite the Act’s long preparatory stage and the breadth ofthe information and comments gathered during the passage ofthe bill, scholars have described the new Act as disappointing,starting with the new test for corporate liability, as its structuralcomplexity makes it “unlikely that there will be many more pro-ceedings under the new law than there had been under the oldregime”99.

This contributes to nurturing the impression that the CMCHA’s impact is more symbolic than real.

Moreover, the path that led to the introduction of the newoffence received more radical criticisms, that were not limited tothe technical wording of the offence, but concerned the appro-priateness of its very inclusion. Among these, J.R. Spencer ob-served that a crime of homicide formulated specifically and ex-clusively for organisations, separated from individual liability, re-vives ancient substantive and procedural techniques (such assubmission to trial of animals, punishment of the corpse of indi-viduals who committed suicide or of inanimate objects), havingstrong symbolic value and aimed solely at mere reassurance ofpublic opinion, which is animated by “sentiments instinctifs etviscéraux”100.

Scholarship is likewise divided on the possibility for the newmodel of corporate criminal liability established by the CMCHAto spread to other sectors of criminal law. While C. Wells, whosewritings and insights since the 1990’s101 played a key role in rais-

99 M. ALLEN, Textbook on Criminal Law, 10th ed., 2009, p. 265.100 J.R. SPENCER, above at fn 1, p. 926 et seq. For a similarly sceptical view, see

J.C. SMITH, Comment to Attorney-General’s Reference (n. 2 of 1999) [2000], 3 All ER,p. 182, in CrimLRev, 2000, pp. 476-479.

101 See, inter alia, C. WELLS, Inquests, Inquiries and Indictments: The Official Reception of Death by Disaster, in Legal Studies, vol. 11, no. 1, 1991, pp. 71 et seq.; ID.,Corporate Manslaughter: A Cultural and Legal Form, in Criminal Law Forum, 6/1,1995, pp. 45 et seq.

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ing awareness about the need for reforming corporate criminalliability for manslaughter, affirmed that the CMCHA occupies“an uneasy no man’s land between the identification and culture(or system) approaches”102, J. Gobert, despite the criticism lev-elled at the structure of the new offence, believes that it “pro-vides not only a new way of thinking about corporate crime butalso a test of corporate criminal liability which could serve as amodel for other areas of corporate wrongdoing”103 (amongwhich especially serious personal injuries in the workplace).

12. First applications in case law

On 15 February 2011, the first conviction of an organisationfor corporate manslaughter was issued. The case concerned anemployee of Cotswold Geotechnical Holdings Ltd, hired as a ju-nior geologist, who died on 5 September 2008 while he was ex-tracting soil samples in a pit excavated for examination of a sitenear Stroud; during these operations, the sides of the pit col-lapsed, burying the victim104. The jury convicted the companyfinding that “their system of work in digging trial pits was whollyand unnecessarily dangerous. The company ignored well-recog-nised industry guidance that prohibited entry into excavationsmore than 1.2 metres deep, requiring junior employees to enterinto and work in unsupported trial pits, typically from 2 to 3.5metres deep”; the deceased “was working in just such a pit whenhe died”105. The case concerned “a small company that em-ployed eight people in 2008”, and its director “was in overall

102 WELLS, above at fn 64, p. 109.103 J. GOBERT, above at fn 41, pp. 431 et seq.104 See M. CUPITT, Corporate Manslaughter: First Ever Prosecution Under New

Law, 18.05.2009; D. ORMEROD, above at fn 1, p. 565.105 Cotswold Geotechnical Holdings convicted of first corporate manslaughter

charge under new Act, press release, www.cps.gov.uk/news/press_releases/107_11/, 15February 2011.


control of the way the company managed its affairs”. The com-pany was ultimately fined £385,000106.

On 1 July 2011, the second corporate manslaughter prose-cution commenced in court. Storage product manufacturer LionSteel Equipment was charged with corporate manslaughter forthe death of one of its employees, after he fell through a roofpanel and died as a result of injuries sustained in the fall107. Thisis the first case to be brought in court against a medium-sizedcompany, with over 100 employees.

Moreover, on 8 May 2012, a Northern Ireland court im-posed a fine of £187,500 and a costs order of £13,000 against asmall pig farming company (JMW Farm Limited) in relation tosafety failings leading to the death of an employee in November2010. This was the first case ending with a conviction in North-ern Ireland under the Corporate Manslaughter and CorporateHomicide Act 2007108.

106 The trial judge, Mr Justice Field, said that the company, which was describedin court as being in a “parlous financial state”, could pay the fine over a period of 10years at £38,500 a year. Moreover, he added: “It may well be that the fine in the termsof its payment will put this company into liquidation. If that is the case it’s unfortunatebut unavoidable but it’s a consequence of the serious breach”: Gloucestershire firm fined £385,000 over trench death, in BBC News, 17 February 2011.

107 In addition, three of the company directors were charged with gross negli-gence manslaughter, as well as failing to ensure the safety at work of their employeesunder s. 37 of the Health and Safety at Work Act 1974.

108 PONTING, £187k fine for Northern Ireland’s first corporate manslaughter con-viction, 9 May 2012, available at www.healthandsafetyatwork.com/hsw/JMW-farms-cor-porate-manslaughter.

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SECTION III.2

The Bribery Act 2010 - Corporate criminal liability for bribery offences

Vincenzo Mongillo

TABLE OF CONTENTS: 1. The Bribery Act 2010. – 2. The four offences estab-lished by the Bribery Act. – 3. Corporate criminal liability for bribery of-fences. The traditional common law model based on the “identificationdoctrine”. – 4. Failure of commercial organisations to prevent bribery(s. 7). – 4.1. The active subject. – 4.2. The conduct element. – 4.2.1. Thenotion of “associated person” – 4.3. The adequate procedures defence.– 4.3.1. Ministerial Guidance about adequate preventive procedures. –5. Penalties and other measures. – 6. The relationship between individ-ual liability and corporate liability for the offences established by theBribery Act. – 7. Territorial application. – 8. Enforcement.

1. The Bribery Act 2010

The UK Bribery Act 2010 (hereinafter, BA) entered intoforce on 1 July 2011, having received the Royal Assent on 8April 20101. In the meantime, on 30 March 2011, the UK Min-istry of Justice published a Guidance in accordance with section9 of the Bribery Act 2010 on the “procedures which relevantcommercial organisations can put into place to prevent personsassociated with them from bribing”2 (hereinafter, Guidance).

1 For some of the first scholarly comments, see, especially, F.J. WARIN - C. FAL-CONER - M.S. DIAMANT, The British Are Coming!: Britain Changes Its Law on ForeignBribery and Joins the International Fight Against Corruption, in Texas InternationalLaw Journal, vol. 46:1, 2010, pp. 1 et seq.; M. RAPHAEL, Blackstone’s Guide to the Bri-bery Act 2010, Oxford, 2010; S. WHITE, “Yes we can!” - The UK Bribery Act 2010, inEucrim, 2011, n. 1, pp. 27 et seq.; G.R. SULLIVAN, The Bribery Act 2010: (1) An Over-view, in Criminal L.R., 2011, n. 2, pp. 87 et seq.

2 UK MINISTRY OF JUSTICE, Guidance about procedures which relevant commercialorganisations can put into place to prevent persons associated with them from bribing(section 9 of the Bribery Act 2010), 30 March 2011, available at www.justice.gov.uk/gui-dance/bribery.htm.


With this important statute, the United Kingdom (England,Wales, Scotland and Northern Ireland3) reorganised and intro-duced innovations in to the framework for bribery offences,thereby updating the UK’s obsolete and anachronistic anti-cor-ruption legislation and finally complied more fully with theOECD Convention on Combating Bribery of Foreign Public Of-ficials in International Business Transactions signed on 17 De-cember 1997 and ratified by the UK on 14 December 1998.

Indeed, the OECD Working Group on Bribery had ex-pressed doubts on the state of UK legislation on the subject andespecially on the UK’s conformity with Article 2 of the Conven-tion, concerning the responsibility of legal persons4.

With the enactment of the BA, UK legislation on (publicand private) corruption finally acquired an organic structure: allprevious crimes of corruption5 were gathered into a single, uni-tary statute, and the legislative gaps were addressed.

2. The four offences established by the Bribery Act.

The BA regulates bribery by establishing four different of-fences.

3 Despite having similar common law traditions, Ireland, as is well-known, is notpart of the United Kingdom.

4 OECD Working Group on Bribery in International Business Transactions,United Kingdom: Phase 2-bis, Report on the Application of the Convention on Comba-ting Bribery of Foreign Public Officials in International Business Transactions and the1997 Recommendation on Combating Bribery in International Business Transactions, 16October 2008, p. 4. See, on this point, P. ARNELL - D. QUIROZ-ONATE, UK Compliancewith International Law: Bribery and Corruption, in International Journal of Liabilityand Scientific Enquiry, 2010, n. 3, p. 183 et seq.

5 Previously, the matter was regulated by some old statutes (the Public BodiesCorrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Preventionof Corruption Act 1916, in each case as amended by the Anti-Terrorism, Crime and Se-curity Act 2001 - Part 12, which extended UK jurisdiction to bribery committed abroadby UK nationals, and widened the bribery laws to encompass foreign public officials),supplemented by the common law offence of bribery. See P. ALLDRIDGE, Reforming theCriminal Law of Corruption, in Criminal Law Forum 11, 2000, pp. 287 et seq.

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The first two – bribing another person (s. 1) and beingbribed (s. 2) – are of a general nature, applying to the corruptionof both public officials and private individuals, and extendingbeyond commercial bribery.

The third offence, of bribery of foreign public officials (s.6), is a discrete offence and is included for the avoidance ofdoubt in relation to UK’s compliance with the Convention.

Finally, the BA introduces an offence that can be committedonly by “commercial organisations”, i.e. the failure of commer-cial organisations to prevent (public or private) bribery commit-ted on their behalf by “associated persons” (s. 7).

3. Corporate criminal liability for bribery offences. The tradi-tional common law model based on the “identification doc-trine”

As mentioned above, s. 7 of the BA introduced a new of-fence, that can be committed only by commercial corporations.

The crime enables circumvention of the practical difficultiesencountered in applying the common law test for corporate cor-ruption, according to which a legal person may be criminally li-able only for crimes committed by individuals who can be char-acterized as part of the “directing mind or will” of the organisa-tion (i.e. Board members, directors and senior managers of equallevel); in practice, this investigation is extremely difficult, exceptin relation to small-size organisations6.

However, it must be specified that commercial organisationsmay, in theory, also commit direct violations of ss. 1, 2 and 6 ofthe BA, as may be inferred from the consent and connivance of-

6 The leading case in this regard is Tesco Supermarkets Ltd v Natrass [1972] AC153; [1971] 2 WLR 1166 HL, applied to bribery by Andrews-Weatherfoil Ltd [1972]1 WLR 118. However, it must be noted that in recent years at least two companieshave been sentenced for acts of bribery committed overseas on the basis of the identi-fication theory, although following a guilty plea; in both cases it was clear that com-pany directors had engaged in the bribery: R. v. Mabey & Johnson, 25 September2009; R. v. Innospec, 26 March 2010.


fence set out in s. 12 (see below, para. 9) and, in general, fromSchedule 1 to the Interpretation Act 19787 (according to whichthe term “person”, when used in statutes, also includes a body ofpersons, with or without legal personality)8.

Thus, the new form of corporate liability introduced by s. 7exists concurrently with the previous form, that is based – in caseof crimes requiring a fault element (as are those established by ss.,1, 2 and 6) – on the common law criterion of identification9.

4. Failure of commercial organisations to prevent bribery (s. 7)

A commercial organisation will potentially commit the fail-ure offence if a person associated with it commits an act ofbribery contrary to ss. 1 and 6 (public and private corruption aretherefore both covered) with the intent to obtain or retain busi-ness (or to obtain or retain a business advantage) for that organ-isation. This must be proved by the prosecution beyond any rea-sonable doubt.

As there is no requirement for the organisation to have mensrea, the offence constitutes a form of strict liability10. Thus, forthe first time, in the context of offences that usually require a

7 UK MINISTRY OF JUSTICE, above at fn 2, § 14, p. 9, note 3.8 “«Person» includes a body of persons corporate or unincorporated”.9 With specific reference to the draft reform (Bribery Bill), see C. WELLS, Bri-

bery: Corporate liability under the Draft Bill 2009, in Criminal L.R., 2009, p. 482.Along the same lines, with reference to the final text, see F.J. WARIN - C. FALCONER -M.S. DIAMANT, above at fn 1, p. 27; G.R. SULLIVAN, above at fn 1, pp. 98-99; BriberyAct 2010: Joint Prosecution Guidance of The Director of the Serious Fraud Office andthe Director of Public Prosecutions, 30 March 2011, p. 11; C. MONTEITH, The BriberyAct 2010: (3) Enforcement, in CrimLRev, 2009, p. 113; as well as Circular 2011/05 ofthe Ministry of Justice - Criminal Law Policy Unit of 27 June 2011, p. 5; OECD,Working Group on Bribery in International Business Transactions, United Kingdom:Phase 1-ter, Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Revised Recommendation on Combating Bribery in International Business Transactions, 16 December 2010, p. 1.

10 S. RAMAGE, Annotations to Bribery Act 2010, Chapter 23, in Current Law Statutes Annotated, 2010, p. 23; S. GENTLE, The Bribery Act 2010: (2) The Corporate

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subjective element (of intention or knowledge), a form of liabil-ity without mens rea may be imposed. Previously, this was onlyavailable in relation to regulatory offences, such as those con-cerning workplace health and safety (see the Health and Safetyat Work Act 1974)11.

S. 7 also provides another mechanism often used in relationto regulatory offences12, i.e. a due diligence defence (in this casean “adequate procedures” defence)13. For this reason, it may bemore accurate to classify failure to prevent bribery under s. 7 asa “hybrid offence”.

According to an authoritative scholar, the structure of s. 7corporate responsibility may be understood, although not “for-mally described” in these terms, essentially, as a form of organi-sational complicity in the offence committed by an associatedperson in its favour14.

4.1. The active subject

Any relevant commercial organisation may be the activesubject of the offence established by s. 7. According to s. 7(5),such organisation may be:

a) a body incorporated under the law of any part of theUnited Kingdom and which carries on a business (whether thereor elsewhere);

Offence, in CrimLRev, 2011, n. 2, p. 102; RAPHAEL, above at fn 1, pp. 57-58; C. NI-CHOLLS - T. DANIEL - A. BACARESE - J. HATCHARD, Corruption and Misuse of Public Of-fice, 2nd ed., 2011, Wiltshire, p. 90, § 4.91

11 C. WELLS, Corporate Criminal Liability in England and Wales: Past, Present,and Future, in M. PIETH - R. IVORY (eds.), Corporate Criminal Liability: Emergence,Convergence, and Risk, London-New York, 2011, pp. 91 et seq., p. 107, for whom thismodel of corporate liability will probably not be extended to other offences, such that“both bribery and health and safety offences will be treated as sui generis”.

12 See LAW COMMISSION, Criminal Liability in Regulatory Contexts: a Consulta-tion Paper, n. 195, 2010.

13 C. WELLS, Containing Corporate Crime. Civil or Criminal Controls?, in J. GO-BERT - A.M. PASCAL (eds.), European Developments in Corporate Criminal Liability,London, 2011, p. 26.

14 J. GOBERT, Squaring the Circle. The Relationship Between Individual and Or-ganizational Fault, in J. GOBERT - A.M. PASCAL (eds.), above at fn 13, p. 155.


b) any other body corporate (wherever incorporated) whichcarries on a business, or part of a business, in any part of theUnited Kingdom;

c) a partnership formed under the law of any part of theUnited Kingdom and which carries on a business (whether thereor elsewhere)15;

d) any other partnership (wherever formed) which carrieson a business, or part of a business, in any part of the UnitedKingdom.

Furthermore, for the purposes of s. 7, “a trade or professionis a business” (s. 7(5)).

From the above, it may be inferred that the notion of com-mercial organisation comprises not only legal persons, but alsoother entities such as partnerships, as long as they perform aneconomic activity.

Likewise, organisations (bodies or partnerships) that pursueprimarily charitable or purely public functions may also be con-sidered commercial organisations as long as they engage in acommercial activity16. Moreover, as referred by the UK authori-ties to the OECD Working Group on Bribery, the fact that anorganisation was controlled or owned by the State cannot of it-self prevent a conviction17.

It must be noted that s. 7 also applies to foreign organisa-tions as long as they carry on a business or part of a business inthe United Kingdom. As for bodies incorporated in the United

15 S. 15 applies to proceedings against partnerships, and establishes that procee-dings be instituted in the name of the partnership itself and not in the name of one ofthe partners, and that any fines must be paid out of the partnership assets.

16 UK MINISTRY OF JUSTICE, above at fn 2, § 35 et seq., pp. 15 et seq. Accordingto C. WELLS, above at fn 9, p. 484, “presumably non-profit organisations that are in-corporated as limited guarantee companies are excluded”.

17 OECD, Working Group on Bribery in International Business Transactions,United Kingdom: Phase 1-ter, Report on the Application of the Convention on Comba-ting Bribery of Foreign Public Officials in International Business Transactions and the2009 Revised Recommendation on Combating Bribery in International Business Tran-sactions, 16 December 2010, p. 11.

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Kingdom, they may be found guilty under s. 7 if they carry on abusiness (regardless of location).

4.2. The conduct element

S. 7(1) states that a relevant commercial organisation isguilty of an offence if any person associated with it bribes an-other with the intention to:

(a) obtain or retain business for the organisation;(b) obtain or retain an advantage in the conduct of business

for the organisation.According to s. 7(3)(a), the organisation is guilty if the asso-

ciated person is or would be found guilty of an offence under ss.1 or 6 (whether or not the person has been prosecuted for suchan offence). In this connection, secondary liability for aiding,abetting, counselling or procuring may also arise18.

Finally, pursuant to s. 7(3)(b) there is no “close connection”required (on the notion, see § 10 below) between the associatedperson and the United Kingdom as per s. 12.

From the basic elements of the crimes referred to in s. 7, itis nevertheless clear that a charge for failure to prevent may onlyarise in relation to active corruption (including that which in-volves only private parties).

The crime in question does not require the person whocommitted the bribery offence to have acted with a “corrupt” or“improper” intent: it is sufficient for he or she to have intendedto procure a business advantage for the organisation.

4.2.1. The notion of “associated person”

S. 8 establishes that an “associated person” is any (naturalor legal19) person that performs services for or on behalf of the

18 Bribery Act 2010, Explanatory Notes, § 51.19 See Bribery Act 2010: Joint Prosecution Guidance, above at fn 9, p. 6 [the ser-

vices “may be performed by a legal person on behalf of another legal person”].


organisation, regardless of the capacity in which the person per-forms such services (s. 8(1)(2)).

According to s. 8(3), the “triggering person” may be, for ex-ample, an employee, an agent (i.e. a negotiating representative orany other individual vested with powers or functions the exerciseof which may have legal effects on the organisation), or a sub-sidiary.

Whether or not a person performs services on behalf of theorganisation is a question of fact, to be determined without regardto any bribe under consideration (s. 8(1))20. In this connection, theBA lends greater importance to substance rather than form21, itsbeing necessary to take into account “all the relevant circum-stances and not merely […] the nature of the relationship be-tween” the person and the organisation (s. 8(4)): in other words,the existence of a formal relationship between the organisationand the third party is irrelevant. However, if the person in ques-tion is an employee, a rebuttable presumption that the person per-forms services for or on behalf of the organisation arises (s. 8(5)).

Thus, it appears clear that the intentio legis behind the ex-pression at issue is “to embrace the whole range of persons con-nected to an organisation who might be capable of committingbribery on the organisation’s behalf”22; even if third persons areinvolved, the organisation must ensure their conformity with itsown anti-bribery policies and adequately oversee their work23.The reference to performance of services on behalf of the organ-isation also reveals a concern to limit corporate liability only tothose acts committed by natural or legal persons that the organ-isation can monitor and control in some form.

According to the Government’s Guidance, contractors toomay be caught by s. 7, insofar as they perform services on behalf

20 See, on this point, the criticisms raised by G.R. SULLIVAN, above at fn 1, p. 96,according to whom this “seems an unnecessary restriction on the offence”.

21 S. GENTLE, The Bribery Act 2010, above at fn 10, p. 106.22 UK MINISTRY OF JUSTICE, above at fn 2, § 37, p. 16.23 S. WHITE, above at fn 1, p. 28.

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of the organisation; the same is true for suppliers, as long as theydo not simply sell or provide goods (but also, for example, per-form services in relation to the material provided)24.

However, the Guidance also draws attention to the risk thatorganisations may be held accountable for acts committed by‘third parties’ upon which it cannot exert sufficient control; fur-ther clarifications are provided in this regard, seeking to dispelthese concerns.

Thus, in relation to sub-contractors, the Guidance empha-sises that organisations possess two key instruments for manag-ing the risks arising within their supply chain: risk-based duediligence and the use of anti-bribery terms and conditions intheir contracts, including requests that contracting parties adoptan analogous approach with the subsequent steps in the supplychain25.

Another situation expressly considered in the Government’sGuidance concerns the relationships between organisations par-ticipating in joint ventures, in relation to which the following dis-tinction is made. If the participants have constituted a legally sep-arate entity (a joint venture enterprise), the joint venture cannotautomatically be considered as an associated person of one of theparticipants: the enterprise must perform services for the partici-pant and the unlawful act must have been committed with the in-tention of procuring an advantage for it26. If, however, the jointventure is conducted merely through a contractual arrangement,the degree of control that a participant has over the arrangementmay be relevant in establishing whether the subject who paid abribe in the conduct of the joint venture may be considered aperson who performed services on behalf of the participant27.

24 UK MINISTRY OF JUSTICE, above at fn 2, § 37 et seq., p. 16. The Guidance is ob-viously the Government’s interpretation of the Act; courts may interpret the Act morestrictly - or indeed more widely.

25 UK MINISTRY OF JUSTICE, above at fn 2, § 39, p. 16.26 UK MINISTRY OF JUSTICE, above at fn 2, § 40, p. 17.27 UK MINISTRY OF JUSTICE, above at fn 2, § 41, p. 17.


Moreover, the Guidance states that if a subsidiary is actingentirely on its own account in offering or paying the bribe itwould not make the parent company liable under s. 7, as itwould not then be performing services for the parent. Therefore,a finding that the parent company obtained an indirect advan-tage (e.g. through the payment of dividends or the provision ofloans by the subsidiary to its parent) is, alone, not sufficient28.

4.3. The adequate procedure defence

As mentioned above, s. 7(2) affords organisations a defenceof “adequate procedures”. Indeed, commercial organisationsmay escape liability if they can prove that, despite the accrual ofan unlawful advantage, they had established “adequate proce-dures designed to prevent persons associated with [the organisa-tion] from undertaking such conduct”.

It must be highlighted that in this case the law requires or-ganisations to discharge not a simple evidential burden ofproof29, but a legal/persuasive burden of proof on a balance ofprobabilities. This standard of proof, that is typical of civil cases,is met if the proposition is more likely to be true than not true,namely if there is greater than 50 percent chance that the propo-sition is true30. Nonetheless, as a matter of logic a defendant’s

28 UK MINISTRY OF JUSTICE, above at fn 2, § 42, p. 17. See P. WILKINSON, The2010 UK Bribery Act Adequate Procedures - Guidance on Good Practice for CorporateAnti-Bribery Programmes, Transparency International, 2010, p. 9, for whom the parentorganisation may still be held liable for the acts of its subsidiary in other respects, e.g.under the Proceeds of Crime Act 2002 or for accounting-related offences.

29 An “evidential” burden requires only that the accused must adduce sufficientevidence for a particular issue to be taken into consideration by the court; if it is putin issue, the burden of proving guilt beyond reasonable doubt remains with the pro-secution.

30 Bribery Act 2010, Explanatory Notes, § 50: “Although not explicit on the faceof the Act, in accordance with established case law, the standard of proof the defen-dant would need to discharge in order to prove the defence is the balance of probabi-lities”; UK MINISTRY OF JUSTICE, above at fn 2, § 33, p. 15; Bribery Act 2010: Joint Pro-secution Guidance, above at fn 9, p. 11. The standard of balance of probabilities is also

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burden should only be to introduce enough evidence to raise areasonable doubt in the mind of the fact-finder regarding guiltwhich the prosecution must then disprove “beyond any reason-able doubt”31: issues on the compatibility of that burden of proofwith Article 6(2) of the ECHR thus arise32.

The Joint Prosecution Guidance clarifies that the adequacyof procedures, however, falls to be decided by the court on acase-by-case basis, without prejudice to the fact that a single actof bribery does not imply, in itself, that the organisational proce-dures were deficient at the moment when an act was committed33.

Ultimately, the provision at issue seeks to provide an incen-tive for adopting effective internal checks, by rewarding the or-ganisations that can prove that they have pre-emptively adoptedand implemented adequate procedures to prevent bribery. It alsoaims to reach a satisfactory balance between the need to estab-lish a sufficiently deterring system and the need to preserve thoseorganisations that appear “not guilty” of the crime committed.

However, the Act does not provide any indication on whatprocedures would be considered adequate. S. 9(1) of the BA re-quires the Secretary of State to “publish guidance about proce-dures that relevant commercial organisations can put in place to

known as “preponderance of the evidence”: see G. FLETCHER, Basic Concepts of Cri-minal Law, New York, 1998, p. 16.

31 See G. WILLIAMS, The Proof of Guilt, 3rd ed., 1963, pp. 184-185. On the bur-den of introducing evidence in respect to a defence, see J.R. SPENCER, Criminal Liabi-lity for Accidental Death: Back to the Middle Ages?, in Cambridge Law Journal, 2009,pp. 263 et seq., who provides a critical commentary to R. v Chargot Ltd (t/a ContractServices) [2008] UKHL 73; [2009] 1 WLR 1 (HL) (a case on the sentencing of an or-ganisation and its director under ss. 3 and 37 of the Health and Safety at Work Act1974). However, this issue is controversial. Case law (including post Human RightsAct 1998) does recognise the ‘reverse burden’ defence as legitimate in some cases. SeeI. DENNIS, Reverse Onuses and the Presumption of Innocence: In Search of Principle, inCLR, 2005, 901 ss.

32 See, on this point, the issues raised by C. WELLS, above at fn 9, p. 485, nt. 26,who, however, observes that organisations possess especial knowledge of their own in-ternal procedures.

33 Bribery Act 2010: Joint Prosecution Guidance, above at fn 9, p. 11.


prevent persons associated with them from bribing as mentionedin s. 7(1)”. To this end, the Secretary of State may “from time totime, publish revisions to guidance under this section or revisedguidance” (s. 9(2)). The Scottish Ministers must be consulted be-fore performing these tasks (s. 9(3)).

4.3.1. Ministerial Guidance about adequate preventive procedures

The final version of the Ministerial Guidelines on measuresto prevent bribery was issued in March 2011, following a thor-ough consultation process that commenced with the publicationof the original document in September 201034.

As emphasised in the “Introduction”, the Guidance seeks to“help commercial organisations of all sizes and sectors under-stand what sorts of procedures they can put in place to preventbribery”35.

The Guidance does not have prescriptive value and doesnot provide a one-size-fits-all compliance program. Rather, itadopts a principles-based approach, providing flexible and out-come-focused principles upon which each organisation may cre-ate an anti-bribery compliance program tailored to its own indi-vidual characteristics.

So, the Guidance does not set forth specific policies or pro-cedures, but proposes six basic principles on which organisa-tions can formulate adequate procedures. For each principle, aCommentary and case studies are provided to aid organisationsin designing their own prevention systems.

The existence of adequate procedures within the organisa-tion is a question of fact that falls to be decided by the courts,which will have to consider all the circumstances and peculiari-ties of each case. However, as specified above, the burden of

34 Consultation on Guidance about Commercial Organizations Preventing Bribery(section 9 of the Bribery Act), at www.justice.gov.uk/consultations/docs/ bribery-act-gui-dance-consultation1.pdf.

35 UK MINISTRY OF JUSTICE, above at fn 2, p. 6.

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proving that adequate procedures have been put in place is onthe organisation.

A brief discussion of the six principles outlined by theGuidance shall now follow.

1) Proportionate proceduresProcedures must be proportionate to the risks of bribery to

be addressed; as emerges more clearly from the third principle,this requires first an evaluation of the risks arising in the entireorganisation (i.e. adoption of a risk-based approach).

Risks of bribery may arise due to: the size of the organisa-tion; the nature and complexity of the activities; the type and na-ture of the persons associated with it (employees, third partagents, subsidiaries, etc.); the customers and the markets (do-mestic or foreign) in which the organisation operates.

The types of risk that the procedures could address are, forexample: the involvement of senior management (see especiallyPrinciple 2); risk assessment procedures (Principle 3); due dili-gence of existing or prospective associated persons (Principle 4);expenses for gifts, hospitality and promotions; charity or politi-cal donations; facilitation payments; staff recruitment, discipli-nary actions and remunerations; financial and commercial con-trols; delegation of authority, separation of functions and theavoidance of conflicts of interest; the reporting of bribery(‘speak up’ or ‘whistle blowing’ procedures); the communicationof the organisation’s policies and procedures, and training intheir application (Principle 5); the monitoring, review and evalu-ation of bribery prevention procedures (Principle 6).

2) Top-level commitmentThe direct efforts of top-level management (defined by the

Guidance as being the “board of directors, the owners or anyother equivalent body or person”) are crucial to the effectivenessof a preventive system, and must be aimed at spreading the cul-ture that bribery is never acceptable. Therefore, this principleseeks to encourage the involvement of top-level management in


designing preventive procedures and in the decision makingprocesses that give rise to risks of bribery.

3) Risk assessmentCommercial organisations ought to assess, on a periodic, in-

formed and documented basis, the nature and extent of their ex-posure to internal and external risks of bribery. The evaluationmust be proportionate to the size, structure, nature, extensionand location of its activities. To this end, it may be appropriateto undertake specific risk assessment procedures.

The Guidance also provides explanations on possible “ex-ternal” and “internal” risk factors. So, it lists, as external risk fac-tors: country risk, sectoral risk, transaction risk, business oppor-tunity risk and business partnership risk (§ 3.5). Internal factorswhich may encourage or lead to bribery must also be guardedagainst. These include: deficiencies in employee training, skillsand knowledge; existence of a bonus culture that rewards exces-sive risk-taking; lack of transparency in internal policies and pro-cedures for hospitality and promotion expenses or for charity orpolitical donations; lack of clear financial control mechanisms;absence of a clear message against bribery on part of top-levelmanagement.

4) Due diligenceAnother effective anti-bribery activity is due diligence, i.e.

procedures that enable mitigation of the risks that attach to do-ing business with parties that perform services on behalf of theorganisation. The significance of effective subjective controls isespecially evident in the use of local intermediaries in foreigncountries. In this context, particular attention will be necessarywhen local laws or conventions dictate the use of local agents;the same is true in case of company mergers or acquisitions.

In high-risk situations, due diligence can include direct in-terrogative enquiries, indirect investigations, and general re-searches on potential associated persons.

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Where business relationships are formed with legal, ratherthan natural, persons (such as external companies), the due dili-gence procedure must be more incisive: “This is because on abasic level more individuals are likely to be involved in the per-formance of services by a company and the exact nature of theroles of such individuals or other connected bodies may not beimmediately obvious. Accordingly, due diligence may involve di-rect requests for details on the background, expertise and busi-ness experience, of relevant individuals. This information canthen be verified through research and the following up of refer-ences, etc.” (§ 4.5).

5) Communication, including trainingCommercial organisations must ensure that anti-bribery

procedures are known and understood throughout the organisa-tion by means of adequate communication measures. The con-tent, language and tone of internal communication may differfrom that directed to external parties.

Within the organisation’s system of internal communica-tions, “speak up” procedures may be established, as means to al-low internal and external individuals to report allegations ofbribery in a confidential manner, give suggestions to improveprocedures and control mechanisms and request advice.

6) Monitoring and reviewAs for vigilance on the effective implementation of preven-

tive procedures, the Guidance does not expressly require that acompliance officer be appointed within the organisation.

In illustrating Principle 2, it is emphasised that the commit-ment of top-level management should also involve “general over-sight of breaches of procedures and the provision of feedback tothe board or equivalent, where appropriate, on levels of compli-ance”.

Principle 6 concerns the requirements of continued moni-toring and periodic review of the preventive system, processes


which constitute the final pillar of an effective model for the pre-vention of bribery.

The Guidance lists a broad range of internal and externalrevision mechanisms: systems for discovering and investigatingacts of bribery and monitoring the ethical quality of certaintransactions (such as internal mechanisms of financial control);internal mechanisms to acquire useful information on the effec-tiveness of procedures, such as staff surveys, questionnaires andfeedback from training activities. Organisations may also con-sider periodic formal reviews and receive useful informationfrom external sources, such as documents published by relevantregulatory authorities or trade bodies. Finally, organisations maysubmit their anti-bribery procedures to external sources of veri-fication and assurance by hiring an expert for the purpose.

5. Penalties and other measures

An organisation guilty of an offence under ss. 1, 2 or 6 areliable, on summary conviction, to a fine not exceeding the statu-tory maximum; in case of conviction on indictment, to a fine forwhich the upper limit is unspecified36 (s. 11(2)).

A person guilty of an offence under s. 7 is liable to a fine onconviction on indictment; thus, there is no upper limit on thefine payable.

In the absence of relevant sentencing guidelines, there is ab-solute uncertainty as to the amount that a pecuniary penalty canreach in cases of bribery, and to the entity of any reductions thatorganisations may obtain through self-reporting. However, in arecent case, Lord Justice Thomas highlighted the need for suffi-ciently dissuasive penalties to counter the damage caused bybribery at national and international levels37.

36 Indeed, current statute law throughout the United Kingdom does not providefor an upper limit on the pecuniary penalties that may be imposed during proceedingson indictment before the Crown Court.

37 Regina v lnnospec Limited, Sentencing remarks of Lord Justice Thomas, inCrown Court at Southwark, 26 March 2010, p. 8.

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In addition to pecuniary penalties, confiscation orders andcivil confiscation actions may also be issued to recover the pro-ceeds of corruption, in accordance with the Proceeds of CrimeAct 2002. In this connection, the Act was amended to grant theSerious Fraud Office the civil law power to recover the goodsobtained by means of unlawful behaviour even in absence of suf-ficient elements to institute proceedings for bribery. The amend-ment entered into force in April 2008 (see ss. 240 et seq. of thePOCA 2002).

Doubts have arisen as to the applicability, to commercial organisations guilty under s. 7, of Article 45 of Directive2004/18/EC of 31 March 2004 (transposed into the UK legalsystem by the Public Contracts Regulations 2006 and the Utili-ties Contracts Regulations 2006), on automatic and obligatoryexclusion from public tenders. Indeed, Article 45 refers the def-inition of corruption in Article 3 of the Convention made on thebasis of Article K.3 (2)(c) of the Treaty on European Union, onthe fight against corruption involving officials of the EuropeanCommunities or officials of Member States of the EuropeanUnion, agreed on 26 May 1997; Article 45 also refers to Article3(1) of Joint Action 98/742/JHA of the Council on corruption inthe private sector.

The Bribery Act 2010 (Consequential Amendments) Order201138, that entered in force on 1 July 2011, amended the PublicContracts Regulations 2006 to clarify that mandatory debarmentapplies only to sentences for acts of “bribery within the meaningof section 1 or 6 of the Bribery Act 2010”39; therefore, sentencesfor offences pursuant to s. 7 are formally excluded from its re-mit.

In any case, as stated in a declaration made before the UKParliament by the Minister of Justice Kenneth Clarke, a sentence

38 2011 No. 1441 Criminal Law.39 An analogous provision is in place in relation to the Utilities Contracts Regu-

lations 2006.


for the offence of failing to prevent bribery may entail the appli-cation of debarment on a discretionary basis40, as per Article45(2)41.

6. The relationship between individual liability and corporate li-ability for the offences established by the Bribery Act

Corporate criminal liability for bribery may arise both forthe unlawful acts described by ss. 1, 2 and 6, and for the failureoffence as per s. 7.

However, in these two sets of cases, the relationship be-tween corporate liability and individual liability differs.

1) In the former set, the organisation’s criminal liability doesnot exclude individual liability of the “directing mind” that ma-terially performed the act of bribery.

Moreover, s. 14 establishes a particular form of connivancefor senior officers42 of a body corporate or Scottish partnership(or persons purporting to act in such capacities) in relation tothe offence directly committed by the body corporate. Indeed, ifthese persons have consented to or connived in an offence ofbribery committed by the organisation to which they belong (re-

40 http://services.parliament.uk/hansard/Commons/bydate/20110330/writtenmi-nisterialstatements/part009.html: “The Government have also decided that a convictionof a commercial organisation under section 7 of the Act in respect of a failure to preventbribery will attract discretionary rather than mandatory exclusion from public procure-ment under the UK’s implementation of the EU Procurement Directive (Directive2004/18). The relevant regulations will be amended to reflect this”. See, for a brief com-ment, KANABAR - MCINNES, Discretionary debarment: Do you want the good news or thebad news?, 26 April 2011, available at http://thebriberyact.com.

41 According to Article 45(2), “any economic operator may be excluded fromparticipation in a contract where that economic operator […] has been convicted by ajudgment which has the force of res judicata in accordance with the legal provisions ofthe country of any offence concerning his professional conduct” (subsection (c)) orwho “has been guilty of grave professional misconduct proved by any means whichthe contracting authorities can demonstrate” (subsection (d)).

42 Senior officers are, as described in s. 14(4), directors, managers, secretaries orother similar officers.

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gardless of whether the act occurred in the United Kingdom oroverseas), they are to be held liable for the same crime. As clari-fied in the Ministerial Circular 2011/05 of 27 June 2011, “this isa form of secondary liability and is not a separate offence”43. Themechanism for individual liability for consent or connivance44 isespecially complex: according to the common law ‘identification’principle, it is first necessary to ascertain the commitment of theoffence by a top-level figure within the organisation (such as aBoard member or a senior manager of equivalent level) for bothcorporate and individual liability to arise; next, if one of the in-dividuals described in s. 14(4) knowingly failed to act or con-sented to the commitment of the offence45, they shall be heldequally liable46. When the acts or omissions which form part ofan offence under ss. 1, 2 or 6 were done or made outside theUnited Kingdom, s. 14(2) does not apply to a senior officer un-less he or she has a close connection with the United Kingdom(within the meaning given by s. 12(4))47.

2) Corporate liability for failure to prevent bribery is cumu-lative and does not replace individual liability. Furthermore, thesusceptibility to prosecution and subsequent punishability of theorganisation is independent of the sentence eventually handed

43 Ministry of Justice, Circular 2011/05, Bribery Act 2010, 27 June 2011-1 July2011.

44 On these notions, in other legal contexts, see Huckerby v Elliott [1970] 1 AllER189.

45 A person consents to an offence if he or she is aware that an offence is goingon and agrees to it in some way. A person connives in an offence if s/he is aware thatan offence is going on and does nothing about it.

46 C. MONTEITH, The Bribery Act 2010, above at fn 9, p. 114.47 S. 12(4): “For the purposes of subsection (2)(c) a person has a close connec-

tion with the United Kingdom if, and only if, the person was one of the following atthe time the acts or omissions concerned were done or made - (a) a British citizen, (b)a British overseas territories citizen, (c) a British National (Overseas), (d) a BritishOverseas citizen, (e) a person who under the British Nationality Act 1981 was a Bri-tish subject, (f) a British protected person within the meaning of that Act, (g) an indi-vidual ordinarily resident in the United Kingdom, (h) a body incorporated under thelaw of any part of the United Kingdom, (i) a Scottish partnership”.


down to the individual offender (s. 7(3))48. This highlights theautonomy of corporate liability, which, however, is only relative,as the corporate offence presupposes the commitment of an of-fence that satisfies all conditions set out in ss. 1 or 6 (see s. 7(1)).Therefore, if the prosecutor is not able to prove beyond any rea-sonable doubt that an offence of active corruption has beencommitted, s. 7 too will not apply49.

Furthermore, unlike the new crime of corporate manslaugh-ter (in relation to which s. 18 CMCHA 2007 expressly excludesindividual liability for aiding, abetting, counselling or procuringthe commission of an offence of corporate manslaughter), theBA makes no provision for a comparable exemption, with theconsequence that secondary liability derived from any primary li-ability on the part of the organisation for the failure of preven-tion offence, may arise50.

7. Territorial application

One of the most interesting features of the BA is its broadjurisdictional scope, which, if the conditions set out in s. 12 arefulfilled, also extends to offences committed outside the territoryof the United Kingdom.

Scholarship has emphasised that the offence set out in s. 7BA is a “crime of unrestrained extra-territorial jurisdiction”51,with all the repercussions that may arise for UK multinationalcompanies or foreign multinationals that carry out at least someactivities in the United Kingdom52. This may be deduced fromthree normative indications.

48 As underlined by the Joint Prosecution Guidance, the application of s. 7 doesnot presuppose that proceedings under ss. 1 and 6 have been instituted against the as-sociated person (nor that that person has been convicted); however, the prosecutormust prove that one of these offences has been committed by an associated person, inaccordance with the ordinary evidential rules.

49 UK MINISTRY OF JUSTICE, above at fn 2, § 14, p. 9.50 To this effect, see G.R. SULLIVAN, above at fn 1, p. 95.51 G.R. SULLIVAN, above at fn 1, p. 95.52 F.J. WARIN - C. FALCONER - M.S. DIAMANT, above at fn 1, p. 28.

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a) First, it does not matter whether the action or omission inquestion was committed in the United Kingdom or overseas (s.12(5)).

b) Second, extraterritorial jurisdiction is not even limited bya requirement that the associated person be a citizen or residentof the United Kingdom, or a body incorporated in the UnitedKingdom (as emerges from s. 7(3)); in other words, it is not nec-essary for the associated person to be linked in some way to theUnited Kingdom. Thus, an associated person for these purposesmay also be a foreign company that performs services on behalfof a British parent company: although the foreign company maynot be held liable for one of the acts of bribery established bythe BA, pursuant to s. 7 it will be able to cast liability on the UKparent.

c) Third, the “close connection” between the offender andthe United Kingdom is also discarded, although it is required forthe extraterritorial application of ss. 1, 2 and 6. Indeed, the of-fence of failing to prevent bribery may be committed by a bodyor partnership incorporated or formed in the UK, irrespective ofwhere it carries on a business, as well as any other incorporatedbody or partnership which carries on a business or part of abusiness in the UK, irrespective of the place of incorporation orformation (s. 7(5)).

If the court holds that the test of business presence in theUnited Kingdom is satisfied, British jurisdiction will exist overacts of bribery committed anywhere in the world, even if theylack any connection with an economic activity performed in theUnited Kingdom53.

However, the law does not define the notion of “carryng ona business, or part of a business”, such that case law will have toflesh out its details54.

53 See, on this point, P. WILKINSON, above at fn 28, p. 98; S. GENTLE, The BriberyAct 2010: (2) The Corporate Offence, above at fn 10, pp. 104 et seq.

54 To this effect, see J. RUPP - R. AMAEE - A. MELIA, The Bribery Act 2010: Impli-cations for Global Businesses and Individual Directors, in AA.VV., Serious EconomicCrime. A Boardroom Guide to Prevention and Compliance, SFO, 2011, p. 87.


According to the Government’s Guidance, whether or notan activity can be classified as “part of a business” is a questionof fact to be decided by the courts, through a common sense ap-proach. However, the term is so generic that, at least in theory,any foreign company operating in the United Kingdom may becaught, by – for example – a branch office, a secondary head of-fice, a representative office, a dependent agent permanent estab-lishment, or a joint venture in which it participates.

Particularly sensitive interpretation problems arise, in thisconnection, in relation to foreign companies listed on the Lon-don Stock Exchange or that have a subsidiary in the UnitedKingdom55.

In general, according to the cautious opinion of the Ministryof Justice, if an organisation is subject to prosecution under s. 7BA it must have a “demonstrable business presence in theUnited Kingdom”. Thus, the mere fact that a foreign company islisted on the London Stock Exchange does not constitute in it-self sufficient attestation of the carrying out, or even partial car-rying out, of activities in the United Kingdom56.

Likewise, according to the Guidance, “having a UK sub-sidiary will not, in itself, mean that a parent company is carryingon a business in the UK, since a subsidiary may act indepen-dently of its parent or other group companies”57; so, this is aquestion of fact to be determined on a case-by-case basis58.

However, it is uncertain whether the Serious Fraud Officeand UK courts will adhere strictly to this view. The SFO’s seniorfigures have already publicly expressed, on several occasions, thewill to interpret the new provisions broadly, especially to avoidplacing “virtuous” British companies at a disadvantage com-

55 S. DOGRA - J. LARNER - C. KERRIGAN, The Bribery Act and its Implications fornon-UK Companies Listed on the London Stock Exchange, in AA.VV., above at fn 55,p. 226 et seq.

56 UK MINISTRY OF JUSTICE, above at fn 2, § 35 et seq., pp. 15 et seq.57 UK MINISTRY OF JUSTICE, above at fn 2, § 36, p. 16.58 C. HALE - P. SANDERSON, Final Guidance on Corporate Anti-Bribery Procedures

- What Does the Bribery Act Mean for PE Firms?, Travers Smith, 31 March 2001, p. 4.

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pared to foreign competitors who are inured to using bribery todo business overseas59. The central issue remains, in any case, theexact meaning of the expression “[it] carries on a business, orpart of a business, in any part of the United Kingdom” or “hav-ing a demonstrable business presence in the UK” which, for theGuidance too, is the decisive factor in determining whether s. 7BA applies to a foreign company.

8. Enforcement

According to s. 10, proceedings may be instituted in Eng-land and Wales against a natural or legal person for a BA offenceonly with the consent of the Director of Public Prosecutions60,the Director of the Serious Fraud Office61 or of the Director ofRevenue and Customs62. In Northern Ireland, instead, the con-sent of the Director of Public Prosecutions for Northern Irelandor of the Director of the Serious Fraud Office is required.

Thus, it is no longer necessary to obtain the consent of theAttorney General63, a position that, in the United Kingdom, isusually held by a member of the Government.

59 See, in particular, the speeches given by Richard Alderman, the former SFODirector, on 7 April 2011, 9 June 2011 [“What I have said to corporates is that it wouldbe very dangerous for them to use a highly technical interpretation of the law to per-suade themselves that they are not within the Bribery Act and that it is permissible forthem to carry on using bribery”], and 29 November 2011 [“Finding a foreign corpora-tion within our jurisdiction that has committed bribery anywhere else in the world andhas undermined an ethical UK corporation is a high priority of the SFO”], available atwww.sfo.gov.uk/about-us/our-views/director’s-speeches/speeches-2011.aspx.”.

60 This figure is the head of the Crown Prosecution Service (the CPS), entrustedwith the examination and, if appropriate, institution, of criminal proceedings in En-gland and Wales pursuant to the outcomes of police investigations.

61 The SFO is, “in England, Wales and Northern Ireland, the principal agencyfor investigating and prosecuting cases of local and international bribery”: seewww.sfo.gov.uk/bribery – corruption/bribery – corruption.aspx.

62 In accordance with ss. 10(4) and 10(5), the consent must be expressed perso-nally by the relevant Director or by an individual with the power to substitute him; thedelegation of power must have been given in writing.

63 See G.R. SULLIVAN, above at fn 1, 99.


The abovementioned parties must adhere to the generalrules established in the Code for Crown Prosecutors64, whichsets out a two-step method: first, it must be ascertained whetherthere is sufficient evidence for a realistic prospect of a convictionand, second, there is a public interest in prosecuting the of-fence65. With specific reference to corporations, these generalrules are integrated by the criteria – in favour of or against aprosecution – set out in the Attorney General’s Guidance, lastupdated on 21 April 201066.

Therefore, in the UK system, the decision on whether toprosecute acts of bribery penalised by the BA is a matter of pros-ecutorial discretion. The factors to consider and the procedureto be followed in deciding whether or not to institute proceed-ings are specified in the Joint Prosecution Guidance on theBribery Act drafted by the Director of the Serious Fraud Officeand the Director of Public Prosecution67.

As for anti-bribery strategies against foreign public officers,the document entitled “Approach of the Serious Fraud Office todealing with overseas corruption”68, is also relevant. The docu-ment was drafted by the SFO before the entry into force of theBA.

In general, it is worth highlighting that the investigativestrategies of British enforcement agencies rely heavily on self-re-porting and on companies’ and individuals’ proactive collabora-tion, so as to ensure a more effective implementation of anti-bribery laws in fighting national and international bribery69.

64 The document was last updated on February 2010 and is available atwww.cps.gov.uk/publications/code_for_crown_prosecutors.

65 Bribery Act 2010: Joint Prosecution Guidance, above at fn 9, p. 2.66 The Guide is available at www.sfo.gov.uk.67 Bribery Act 2010: Joint Prosecution Guidance, above at fn 9.68 SFO, Approach of the Serious Fraud Office to Dealing with Overseas Corrup-

tion, 21 July 2009.69 F.J. WARIN - C. FALCONER - M.S. DIAMANT, above at fn 1, p. 7, pp. 44 et seq.

New Statutory Tests of Corporate Criminal Liability in the UK: the CMCHA 2007 and the Bribery Act...

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