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By Amanda Pinto QC & Martin Evans QC, ISBN 9780414075283, Sweet & Maxwell (Fourth Edition, 2021)
The fact that this book has merited a fourth edition testifies to its success as a valuable text for a barrister who prosecutes or defends criminal cases involving a limited company. The work is enlivened by the extensive knowledge and practitioner experience of both authors. Also, the publication of the fourth edition is very timely. There is increasing pressure on the enforcement authorities to bring criminal prosecutions against companies in order to hold them to account for their misdeeds. As corporate reputation and branding has engendered a corporate personality distinct from that of its shareholders, society requires companies to act as good corporate citizens, and to pay a price in the criminal courts where they have erred and engaged in corporate wrongdoing.
The book begins in Part 1 with an explanation of how the principles of corporate criminal liability have developed since the 18th century. The authors trace the origin of the doctrine of identification and how criminal liability for offences requiring mental intent can be proved against a limited company. The difficulties for a prosecuting authority are highlighted, culminating in an account of the problems experienced recently by the Serious Fraud Office in its failed prosecution of Barclays Plc. Part 2 contains a single chapter on directors’ liability and directors’ disqualification proceedings. Part 3 of the book focuses on criminal procedure. Although some of this material applies generically in criminal cases, indictments against companies can raise particular challenges, such as issues relating to company representation at court and sentencing. Reference to legislation establishing deferred prosecution agreements is located in the discussion on sentencing. In addition, there is a chapter dedicated to the application of the criminal restraint and confiscation regime to limited companies which is helpful in illuminating the issues which arise. The engagement between companies and human rights is tackled in Part 4. The extent to which a company can claim protections under the European Convention on Human Rights is a matter for debate, but on any view the ability to assert a small number of rights, such as the right to a fair and public hearing within a reasonable time must surely be indisputable. In Part 5 of the book, the authors have brought together the main specific offences which tend to be committed by companies. The offences chosen by the authors is not exhaustive, and although the first offence to be considered is corporate manslaughter, the remaining offences have a bias towards financial crimes, such as Companies Act offences, corporate insolvency, financial services offences, false accounting and false statements, bribery, and criminal facilities in corporate arrangements. The new corporate bribery and corporate facilitation of tax evasion offences are considered in this part of the book. The sections on these new offences may have greater resonance in the coming years if the ‘failure to prevent’ model of criminal liability is extended to apply to a new corporate offence of ‘failing to prevent economic crime’. Health and safety offences have not been overlooked, but rather they have been categorised as regulatory offences and form the substance of Part 6 of the book.
Throughout the book, the authors’ discussion of the leading cases is informative and insightful. Also, in a nod to their experience as practitioners, the authors have included in Appendix C a table of offences most likely to affect companies in England and Wales. Inevitably, the preparation of a list of this sort involves a subjective judgment. Even though some of these offences are rarely prosecuted, the drawing together of these offences in a table is an exercise which the busy practitioner will find useful.
In the foreword to the fourth edition, Lord Justice Davis described the book as ‘practical, thoughtful and thoroughly researched’. Nobody could disagree.
The fact that this book has merited a fourth edition testifies to its success as a valuable text for a barrister who prosecutes or defends criminal cases involving a limited company. The work is enlivened by the extensive knowledge and practitioner experience of both authors. Also, the publication of the fourth edition is very timely. There is increasing pressure on the enforcement authorities to bring criminal prosecutions against companies in order to hold them to account for their misdeeds. As corporate reputation and branding has engendered a corporate personality distinct from that of its shareholders, society requires companies to act as good corporate citizens, and to pay a price in the criminal courts where they have erred and engaged in corporate wrongdoing.
The book begins in Part 1 with an explanation of how the principles of corporate criminal liability have developed since the 18th century. The authors trace the origin of the doctrine of identification and how criminal liability for offences requiring mental intent can be proved against a limited company. The difficulties for a prosecuting authority are highlighted, culminating in an account of the problems experienced recently by the Serious Fraud Office in its failed prosecution of Barclays Plc. Part 2 contains a single chapter on directors’ liability and directors’ disqualification proceedings. Part 3 of the book focuses on criminal procedure. Although some of this material applies generically in criminal cases, indictments against companies can raise particular challenges, such as issues relating to company representation at court and sentencing. Reference to legislation establishing deferred prosecution agreements is located in the discussion on sentencing. In addition, there is a chapter dedicated to the application of the criminal restraint and confiscation regime to limited companies which is helpful in illuminating the issues which arise. The engagement between companies and human rights is tackled in Part 4. The extent to which a company can claim protections under the European Convention on Human Rights is a matter for debate, but on any view the ability to assert a small number of rights, such as the right to a fair and public hearing within a reasonable time must surely be indisputable. In Part 5 of the book, the authors have brought together the main specific offences which tend to be committed by companies. The offences chosen by the authors is not exhaustive, and although the first offence to be considered is corporate manslaughter, the remaining offences have a bias towards financial crimes, such as Companies Act offences, corporate insolvency, financial services offences, false accounting and false statements, bribery, and criminal facilities in corporate arrangements. The new corporate bribery and corporate facilitation of tax evasion offences are considered in this part of the book. The sections on these new offences may have greater resonance in the coming years if the ‘failure to prevent’ model of criminal liability is extended to apply to a new corporate offence of ‘failing to prevent economic crime’. Health and safety offences have not been overlooked, but rather they have been categorised as regulatory offences and form the substance of Part 6 of the book.
Throughout the book, the authors’ discussion of the leading cases is informative and insightful. Also, in a nod to their experience as practitioners, the authors have included in Appendix C a table of offences most likely to affect companies in England and Wales. Inevitably, the preparation of a list of this sort involves a subjective judgment. Even though some of these offences are rarely prosecuted, the drawing together of these offences in a table is an exercise which the busy practitioner will find useful.
In the foreword to the fourth edition, Lord Justice Davis described the book as ‘practical, thoughtful and thoroughly researched’. Nobody could disagree.
By Amanda Pinto QC & Martin Evans QC, ISBN 9780414075283, Sweet & Maxwell (Fourth Edition, 2021)
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