Recent years have highlighted the limitations of, and tensions within, the law governing English corporate criminal enforcement. Notably, unsuccessful individual prosecutions have left several corporate DPAs legally “orphaned”, and the recent collapse of the Barclays prosecution is a stark illustration of lingering uncertainties around the scope and application of the identification principle.
These developments come against a background of already existing and sustained criticism of the framework for corporate criminal enforcement in the UK.
To debate whether the English law of corporate criminal liability needs reform and, if so, what reform should and could look like, Debevoise has gathered the following leading practitioners and thinkers:
Lord Garnier QC – Solicitor General for England and Wales (2010-2012), Edward Garnier is generally credited with designing the UK DPA regime. Back in private practice at 4 Pump Court, he represents both the government and corporate defendants. Lord Garnier notably acted for the SFO in securing approvals for the first (Standard Bank) and hitherto largest (Rolls-Royce) English DPAs. He is a longtime and vocal proponent of a wider failure to prevent-regime.
David O’Neil – Partner in Debevoise’s DC office specialising in representing clients in high-stakes matters involving significant legal, political and public relations implications. During an illustrious prior career in the U.S. Department of Justice, Mr. O’Neil served as Deputy Assistant Attorney General for the Fraud Section and, later, as Head of the Criminal Division. He is therefore well-placed to discuss the merits and demerits of the U.S. vicarious liability regime.
Jessica Parker – Partner at Corker Binning in London, Ms. Parker is a business crime specialist frequently retained to represent individuals in high-profile proceedings. In the SFO’s recently ill-fated prosecution of Barclays and four of its senior executives, Ms. Parker successfully defended the bank’s former CEO. Ms. Parker argues that now is not the time for legislative change to increase the range of corporate criminal liability, but for proper and rigorous implementation of the existing framework.
Robin Lööf – International Counsel in Debevoise’s London and Paris offices with extensive experience of cross-border corporate enforcement, including the joint US/French settlement with Société Générale. In a recent article in the Criminal Law Review, Dr. Lööf argued for causation-based corporate liability for criminal harms.
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