‘Eat, sleep and repeat?’ Corporate criminal liability and extension of the failure to prevent model

This paper examines the law relating to corporate criminal liability in England and Wales. A doctrinal analysis of case law and legislation is undertaken in order to examine how the law has worked since the seminal case of Tesco v Nattrass. The problems experienced by prosecutors in the attribution of corporate criminal liability to larger companies with complex management structures due to the identification doctrine are outlined, with a detailed analysis of the ‘failure to prevent’ corporate criminal liability offences, introduced to circumvent the problems associated with the identification doctrine. The new failure to prevent fraud offence, together with changes to the identification doctrine, introduced by the Economic Crime and Corporate Transparency Act 2023 are analysed and evaluated. The paper concludes with an assessment of the current state of corporate criminal liability in England and Wales.