“Corporate criminal liability” was the topic for discussion by a global panel of HSF experts on 22 October 2020. The webinar formed part of our Global Conference Series, which has previously covered developments in: CC&I in the context of Covid-19; Anti-Bribery and Corruption and DPAs; global sanctions and whistleblowing.
Speakers from the firm’s CC&I practices in London, Germany, Australia and New York came together to take a closer look at how corporates can be held criminally liable in the UK, Germany, Australia and US. The webinar also contained a case study which saw our experts work through the legal and practical issues when a company is faced with a criminal investigation, focusing on extraterritorial issues, the approach of the law enforcement authorities, how to effectively advise a Board and the treatment of individuals within the company who may be subject to investigation themselves.
The session sought to gauge the audience’s views through a number of poll questions; and to kick off, the audience expressed their views on whether companies should be held criminally liable for the actions of their officers/employees, with the following results:
|Do you think it is right for companies to be held criminally culpable, or is regulatory/civil action sufficient?||Result of Poll|
|Yes, companies should be held criminally culpable for certain behaviour.||71.4%|
|No, regulatory/civil action should be sufficient/ is more appropriate for corporates.||21.4%|
This response is perhaps unsurprising as it reflects a view that certain corporate conduct should be held criminal in nature, even where there is also scope for regulatory or civil sanctions. This view appears to be consistent with the introduction of increased scope for corporate criminal liability in laws and regulations in a number of jurisdictions. However, the way in which the acts of employees and officers are attributed to companies so they can be held criminally liable, varies across jurisdiction and is a question that is subject to ongoing debate.
The panel explored how the UK, Germany, Australia and the US have approached the question of how corporates are held liable, for what activity and how and by whom this is investigated. We reviewed the failed prosecution of Barclays by the UK’s Serious Fraud Office and the question of whether further reform to the law will and should take place, particularly a proposed further “failure to prevent” offence. We considered new legislation in Germany in the form of the draft Corporate Sanctions Act which, if it becomes legislation, will notably have a broad extraterritorial application so that German companies might be “criminally” liable for conduct committed abroad. Our Australian panel described reform proposals in that jurisdiction and in particular focussed on the Australian Law Reform Commission’s recent review of corporate criminal liability.
A recording of the webinar can be accessed here.
The next and final webinar in the Global Conference Series will take place on Thursday, 19 November 2020 at 9 am. This event will focus on anti-money laundering from a multi-jurisdictional perspective, and will feature speakers from the firm’s London, Australia, Hong Kong and Dubai offices. Please click here to register.