Two recently released judgments consider the “directing mind and will” of a company. The cases concern charges against Barclays plc and Barclays Bank plc relating to events flowing from the 2008 global financial crisis. The courts found that senior executives, including the CEO and CFO, did not represent the required “directing mind and will” of Barclays in the circumstances.

A company may be capable of committing a criminal offence by the acts of its officers or employees under the “identification” principle. For many offences – including fraud – the route to criminal culpability is for a prosecutor to identify an individual(s) whose conduct and state of mind can be attributed to the company, so that he/she represents the company’s “directing mind and will”.

The judgments examine the doctrine of “identification” and who constitutes the “directing mind and will” of a company, and provide practical lessons on corporate governance in the criminal context.

Our corporate crime team considers the judgments in this post on our FSR and corporate crime blog.