Response to the UK Law Commission consultation on corporate criminal liability

The thrust of this submission is that there is currently a failure to hold to account criminally UK companies (and companies which operate in the UK and/or have UK listings) which are complicit in human rights abuses abroad, including abuses constituting all of the elements of the domestic criminal offences murder, assault, sexual offences, theft, modern slavery, or of offences designed to protect workers and the environment.

It is our submission that:

(a) Where the operation of the identification principle contributes to that failure it should be reformed or supplemented.

(b) No reassessment of corporate criminal liability can properly be undertaken without a review of extraterritoriality in the criminal law because it is necessary to recognise and accommodate the trans-frontier nature of modern commerce as well as the global impact of crimes committed in jurisdictions with inadequate protections.

(c) It is right, and there is ample precedent for the principle, that companies operating in the UK should take action here (i.e. at the highest decision making level) to prevent what is recognisable as criminal activity abroad (whether or not that conduct is classified as criminal in the foreign state) and that the failure to do so or the positive decision to act so as to promote such activity is the UK crime, with an actus reus (the omission to take action to prevent or the putting into place of arrangements that assist/encourage) that occurs within the jurisdiction.

This document was drafted by Stuart Biggs (Barrister, Three Raymond Buildings) and Rachel Chambers (Assistant Professor of Business Law, University of Connecticut) on the instructions of Traidcraft Exchange and Corporate Justice Coalition.

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