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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

Bellevue Law—Lianne Craig

Bellevue Law—Lianne Craig

Workplace law firm expands commercial disputes team with senior consultant hire

EIP—Rob Barker

EIP—Rob Barker

IP firm promotes patent attorney to partner

Muckle LLP—Ryan Butler

Muckle LLP—Ryan Butler

Banking and restructuring team bolstered by insolvency specialist

NEWS
A High Court ruling involving the Longleat estate has exposed the fault line between modern family building and historic trust drafting. Writing in NLJ this week, Charlotte Coyle, director and family law expert at Freeths, examines Cator v Thynn [2026] EWHC 209 (Ch), where trustees sought approval to modernise trusts that retain pre-1970 definitions of ‘child’, ‘grandchild’ and ‘issue’
Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
Recent allegations surrounding Peter Mandelson and Andrew Mountbatten-Windsor have reignited scrutiny of the ancient common law offence of misconduct in public office. Writing in NLJ this week, Simon Parsons, teaching fellow at Bath Spa University, asks whether their conduct could clear a notoriously high legal hurdle
A landmark ruling has reshaped child clinical negligence claims. Writing in NLJ this week, Jodi Newton, head of birth and paediatric negligence at Osbornes Law, explains how the Supreme Court in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 has overturned Croke v Wiseman, ending the long-standing bar on children recovering ‘lost years’ earnings
A Court of Appeal ruling has drawn a firm line under party autonomy in arbitration. Writing in NLJ this week, Masood Ahmed, associate professor at the University of Leicester, analyses Gluck v Endzweig [2026] EWCA Civ 145, where a clause allowing arbitrators to amend an award ‘at any time’ was held incompatible with the Arbitration Act 1996
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