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24 J. Fin. Crime 2 (2017)

handle is hein.journals/jfc24 and id is 1 raw text is: Editorial Journal of Financial Crime Vol 24 No. 1, 2017 pp. 2-3 ©EmeraldPublishing Liintd 135D-0790 Passing the Buck - yet again! The thirty-fourth annual Cambridge symposium on economic crime took place at Jesus College, Cambridge, from Sunday 4th to Sunday 11th September 2016. As in previous years, it was attended by well over 1,600 participants coming from a great many jurisdictions and ranging across a very broad spectrum of professional interests. The symposium this year took as its overarching these where does the buck stop in cases of economically motivated crime. It posed the question whether, in addition to those directly responsible, should we not cast a net, of some kind, over those who facilitated the misconduct in question and those who are at positions to control or supervise the conduct of those who do engage in abuse? Such issues until relatively recently were, at least in the context of financial and business sectors, seen as non-controversial. While those in management have certain more or less relevant responsibilities to promote good governance, any legal or, for that matter, regulatory accountability for the actions of those lower down the corporate hierarchy was at best academic. While we have increasingly come to appreciate that most complex frauds and other forms of misconduct require the assistance, innocent or otherwise, of lawyers, accountants and bankers, with the exception of the money laundering offences, we have hesitated to impose liability for mere facilitation. There are real issues as to the level of culpability at which it is seen to be justified to impose responsibility in the criminal, civil and regulatory law. Where real penalties are involved, traditionally there has been a degree of hostility to imposing meaningful liability for less than recklessness. There is also a very real problem in attributing knowledge and intention to corporations. The English courts have on the whole required prosecutors to identify the directing mind and will of the company and it is the state of mind of that individual which will be attributed to the company. In complex situations invariably viewed two or three years down the road, establishing this in the court to the requisite standard of proof is a barrier that few have surmounted. Of course, there are other theories which may be more effectively employed, and it is true that some courts, including the House of Lords, have taken a rather more robust approach. An alternative approach to attempting to fix criminal responsibility on a company for the misconduct of those it employs is to simply create liability for failing to prevent certain types of misconduct taking place. This is not a new idea; the US law as early as 1934 imposed liability on those who while in a supervisory position could not show that they had taken reasonable steps to prevent the wrongdoing of those under them. While this approach has morphed into a much more developed jurisprudence based on control, some other jurisdictions have espoused it in this rather simple form. Indeed, Commonwealth Law Ministers commended it as a sensible approach in 1983. There is, of course, a watered-down version in English law: namely, section 7 of the Bribery Act 2010. The Cameron government became interested in such ideas, and the Attorney General Jeremy Wright QC announced at the 32nd Cambridge Symposium that the government was considering legislative proposals for a new separate offence of failing to prevent economic crime. However, the following year, the then Minister of Justice Andrew Selous announced that the government had decided not to pursue this approach. In May 2016, Justice Minister JEC 24,1

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