BCL partner, John Binns speaks to LexisNexis discussing the Government's intention to bring forward an failure to prevent fraud (FTP) offence in the ECCT Bill when it progresses to the House of Lords.

Here is a short extract from the article*. If you wish to read the full article, please click here or visit LexisNexiswebsite.

"The Minister's assurance at the despatch box follows a proposed amendment by former Lord Chancellor Sir Robert Buckland KBE KC MP to include a failure to prevent fraud offence in the ECCT Bill. In light of the Minister's commitment to address the need for a failure to prevent fraud offence in the Lords, Mr Buckland's amendment was not pressed to a vote.

The Lords Second Reading of the ECCT Bill is scheduled for 8 February.

John Binns has commented:

"This may be the perfect example of a change happening gradually, then suddenly, and of the risks that follow when that happens.

The government, the Law Commission, and lawyers in the field have been thinking for several years about the issues involved in holding corporates liable for economic crime.

The fact that no perfect solution has been found in all that time is not an accident.

At play are the additional overheads for business (in a less than ideal economic context) as well as legal certainty and the risks for associated individuals.

The Bribery act is widely regarded as a success and has doubtless improved behaviour as well as generated DPAs for the SFO.

But we've already seen plenty of examples where the corporate and the prosecutor agree that an individual is guilty, but where the evidence hasn't been enough to support that conclusion in a criminal trial.

The drafting of clauses and guidance will need to bear all these things in mind and there must be risk that it is now, ironically, caught up in a timetable that may be too tight, in a bill that is really designed to achieve other things.""

*This article was first published by LexisNexis on 26 January 2023.