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07 November 2025 / Jonathan Fisher KC
Issue: 8138 / Categories: Opinion , Liability , Bribery , Legal services , Company , Risk management , Governance , Fraud
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Failure to prevent: Who’s liable?

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The ‘failing to prevent’ model of corporate criminal responsibility should be viewed as an opportunity & not a burden, says Jonathan Fisher KC

The last 15 years have witnessed a fundamental shift in the law’s approach towards the imposition of criminal responsibility where companies and their directors have become involved in the commission of financial crime.

Historically, the law favoured a reactive approach, penalising a company where a director, as directing mind and will of the company, engaged in criminal activity. Today, a more proactive approach is preferred, whereby a company is held criminally liable unless it can show that adequate procedures to prevent the offending conduct had been instituted.

There are three such offences involving bribery (s 7, Bribery Act 2010), facilitating tax evasion offences (ss 45 and 46, Criminal Finances Act 2017), and failing to prevent fraud (s 199, Economic Crime and Corporate Transparency Act 2023). Although the fact that criminal activity occurred does not necessarily mean that preventative measures taken were

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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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