After much fanfare, the Economic Crime and Corporate Transparency Act (ECCTA 2023) became law on 26 October 2023. One of the key new provisions is a change to the way that criminal liability is attributed to corporate bodies (‘the identification principle’). This change has been widely hailed as widening the pool of people through which companies can be held criminally liable, thus (the logic goes) making it easier to successfully prosecute companies. However, the change would not, in fact, have affected the outcome of the one case that has been frequently cited as the leading driver for legislative change in this area: Serious Fraud Office v Barclays plc and another [2018] EWHC 3055 (QB), [2018] All ER (D) 186 (Nov).
Directing mind & will
The legal position until ECCTA 2023 came into force was that the acts and states of mind of the natural persons who represent the ‘directing mind and will’ of the company would
