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05 May 2023 / Tom McNeill
Issue: 8023 / Categories: Features , Fraud , Health & safety
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Failing to prevent fraud: learning lessons from health & safety

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Do health & safety duties in the workplace pave the way for failure to prevent fraud? Tom McNeill sets out the possible routes ahead
  • Much like workplace health and safety legislation, under the proposed failure to prevent fraud offence the burden will be on the organisation to prove the reasonableness of its procedures.
  • Punishing organisations for wrongdoing which they may be able to do little to prevent will arguably do little to deter crime.

At some point and in some form, we are likely to have a new failure to prevent (FTP) fraud offence, it having been shoehorned into the Economic Crime and Corporate Transparency Bill, currently in the House of Lords. While FTP fraud has been long debated, there remain significant criticisms, not least that it risks organisations being punished for conduct which was not their own and which they could not have prevented; and that it may do little to prevent fraud and potentially have the opposite effect. This

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Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

How forcefully can a litigant criticise a public authority before robust advocacy crosses the line into unreasonable conduct? 
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