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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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MOVERS & SHAKERS

Haynes Boone—Jeremy Cross

Haynes Boone—Jeremy Cross

Firm strengthens global fund finance practice with London partner hire.

DWF—Stephen Webb

DWF—Stephen Webb

Partner and head of national planning team appointed

mfg Solicitors—Nick Little

mfg Solicitors—Nick Little

Corporate team expands in Birmingham with partner hire

NEWS
Contract damages are usually assessed at the date of breach—but not always. Writing in NLJ this week, Ian Gascoigne, knowledge lawyer at LexisNexis, examines the growing body of cases where courts have allowed later events to reshape compensation
The Supreme Court has restored ‘doctrinal coherence’ to unfair prejudice litigation, writes Natalie Quinlivan, partner at Fieldfisher LLP, in this week' NLJ
The High Court’s refusal to recognise a prolific sperm donor as a child’s legal parent has highlighted the risks of informal conception arrangements, according to Liam Hurren, associate at Kingsley Napley, in NLJ this week
The Court of Appeal’s decision in Mazur may have settled questions around litigation supervision, but the profession should not simply ‘move on’, argues Jennifer Coupland, CEO of CILEX, in this week's NLJ
A simple phrase like ‘subject to references’ may not protect employers as much as they think. Writing in NLJ this week, Ian Smith, barrister and emeritus professor of employment law at UEA, analyses recent employment cases showing how conditional job offers can still create binding contracts
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