The Law Commission has published a discussion paper seeking views on  whether, and if so, how, the law relating to corporate criminal liability can be improved so that it appropriately captures and punishes criminal offences committed by corporations and their employees.

The main issue is how to better hold large companies to account for criminal conduct, with focus on the fairness of the “identification principle” through which only the acts of senior individuals representing the company’s “controlling mind and will” can be attributed to the company, and the potential expansion of “failure to prevent” offences to fraud and other economic crime.

And watch out - there's also a question about whether there would be merit in adopting the US concept of respondeat superior - a strict liability concept used to hold companies criminally liable for criminal activities of an employee, representative or agent acting in the scope of their employment or agency.  

The Law Commission notes competing concerns that alternative models for assessing the criminal liability of corporations may place a disproportionate and costly compliance burden on law abiding businesses.

The consultation is open until 31 August 2021.