The Fraud Files podcast series

Latest Episode

Episode 6: Identification doctrine reform

Under the so-called identification doctrine, companies could previously only be held criminally liable for a criminal offence requiring a particular mental state (e.g. knowledge, dishonesty etc.) if the mental state of a person representing the company's "directing mind and will" could be attributed to the company. In response to suggestions that the doctrine did not adequately deal with the realities of corporate structures, making it disproportionately difficult to prosecute large organisations for wrongdoing committed by their employees,  Parliament enacted the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023), which introduced a new statutory route to attributing criminal liability to a corporate. Under new provisions which came into force in December 2023, a corporate can be liable where a ‘senior manager’, acting with their actual or apparent authority, commits a listed economic crime offence. In this episode, Elizabeth Head, Eamon McCarthy-Keen, and Jessica Chappatte discuss the background to the reforms, the new provisions of the ECCTA 2023, and the implications for businesses of this expanded route to corporate criminal liability.

You can also read our briefing on this topic, which is available on our blog.

ALL EPISODES

Episode 1: Failure to prevent – an introduction

In this initial episode, Susannah Cogman, Elizabeth Head and Jessica Chappatte provide an overview of the key provisions of the new Act and its impact on corporates, as well as some teasers for future episodes.

You can find links to further background reading mentioned in this episode below:

Economic Crime and Corporate Transparency Act passed in UK Parliament

The Economic Crime and Corporate Transparency Bill: where are we now?

Further UK corporate criminal liability reform – corporates may be liable for actions of senior managers

Failure to prevent fraud – what are the implications of the new offence?

Episode 4: Focus on the financial sector – APP fraud

In the first of our "crossover" episodes, Susannah Cogman is joined by Jenny Stainsby from HSF's Financial Services Regulatory team to look at the financial sector's current focus on APP fraud, its interaction with the offence of failure to prevent fraud, and other steps being taken to tackle this widespread fraud typology. Stay tuned for Part 2 of our financial sector focus where we will be looking at some of the other implications of the Economic Crime and Corporate Transparency Act 2023 for financial institutions, as well as further episodes focusing on other key aspects of the Act.

You can find further information on APP fraud and the FCA's approach to fraud prevention here:

APP fraud and vulnerable customers – lost in implementation?

APP Fraud: Prevention is surely better than paying out

APP Fraud – the UK is increasingly looking out of step

Tackling APP Fraud in the UK: where to next?

Proceeds of fraud - Detecting and preventing money mules

Firms should strengthen anti-fraud systems and must treat victims of fraud better, review finds

Anti-fraud controls and complaint handling in firms (with a focus on APP Fraud)

Episode 5: Associated persons and failure to prevent fraud

Under the new offence of failure to prevent fraud, companies can incur liability as a result of acts by their "associated persons". In this episode Elizabeth Head, Rob Hunt and Shannan Casey-Black discuss the types of third parties that can be "associated persons" for this purpose, consider how this compares with similar concepts under the Bribery Act 2010 and the Criminal Finances Act 2017, and provide some advice to companies as they start to think about their risks in this area.

You can also read our accompanying briefing on this topic, which is available on our blog.

Episode 6: Identification doctrine reform

Under the so-called identification doctrine, companies could previously only be held criminally liable for a criminal offence requiring a particular mental state (e.g. knowledge, dishonesty etc.) if the mental state of a person representing the company's "directing mind and will" could be attributed to the company. In response to suggestions that the doctrine did not adequately deal with the realities of corporate structures, making it disproportionately difficult to prosecute large organisations for wrongdoing committed by their employees,  Parliament enacted the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023), which introduced a new statutory route to attributing criminal liability to a corporate. Under new provisions which came into force in December 2023, a corporate can be liable where a ‘senior manager’, acting with their actual or apparent authority, commits a listed economic crime offence. In this episode, Elizabeth Head, Eamon McCarthy-Keen, and Jessica Chappatte discuss the background to the reforms, the new provisions of the ECCTA 2023, and the implications for businesses of this expanded route to corporate criminal liability.

You can also read our briefing on this topic, which is available on our blog.