Criminal Offences in England & Wales

Criminal offences are divided into summary and indictable offences. Summary offences are dealt with in the magistrates’ courts, where proceedings are presided over by a District Judge or lay magistrates. Indictable offences are more serious and are heard in the Crown Court, where there is a right to trial by jury and judges have greater sentencing powers. Certain indictable offences may be dealt with in the magistrates’ courts if the crimes charged are deemed to merit sentencing within the powers of that court.

An individual or body corporate can be liable for a criminal offence if:

• the requisite external elements of the offence are established, such as the prohibited act, omission or state of affairs, together with any specified consequences (the “actus reus”); and
• the requisite “fault” elements of the offence are established, such as intention, recklessness, knowledge, negligence or strict liability (the “mens rea”).

In addition to substantive offences, the law criminalises various inchoate offences, such as encouragement to commit crime, attempt to commit crime and conspiracy to commit crime.

The Definition of White-Collar Crime

There is no definition in law of what constitutes a white-collar crime. However, it is apparent that “white-collar crime” has the potential to encompass a wide range of offending conduct, both by individuals and by corporates. It usually implies a connection with the carrying on of a business or profession but is narrower than the general term “economic crime” (see the Crown Prosecution Service’s Economic Crime Strategy (2025)).

Limitation Periods for Criminal Offences

For summary offences, the general rule is that the application for a summons must be served on the magistrates’ court within six months of the time the offence was committed. However, an offence-creating statute may specify a different starting point, such as the date when the prosecutor has sufficient evidence to justify a charge. Otherwise, there is no statute of limitations or other overarching limitation rule. A prosecution for indictable offences can be commenced at any time and address offending conduct of any age.

The General Rule on Jurisdiction

The criminal courts have the jurisdiction to try any offence under the law of England & Wales, wherever in the world that offence may have been committed. Whether the offending conduct amounts, in fact, to a criminal offence depends on the extraterritorial provisions of the laws themselves.

The General Rule on Territoriality

The general rule is that a criminal offence under the law of England & Wales applies within the realm of England & Wales only, and does not extend beyond those territories. For a criminal offence to have extraterritorial effect in law, this must be specifically provided for by statute. However, R v Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631 established that a crime may be regarded as having been committed in England & Wales if a “substantial part” of the offence took place within the jurisdiction. There are specific rules governing cross-frontier inchoate offences, such as conspiracy and attempt, which shall not be addressed here.

Extraterritoriality and White-Collar Crimes

The global nature of modern business means that the prosecution and defence of white-collar crime frequently involve consideration of extraterritorial and cross-frontier provisions. Offences such as fraud, false accounting and false statements by company directors are given extraterritorial effect by the provisions of the Criminal Justice Act 1993 (CJA 1993). Those provisions were designed to cope with the type of modern, multi-jurisdictional offending that is frequently a feature of white-collar crime. Offences under the Bribery Act 2010 (BA 2010) were given specific extraterritorial effect within the Act itself, and offences are justiciable in England & Wales if committed abroad as long as the offender has a “close connection” with the UK.

The fact that the same offending conduct may constitute a criminal offence in more than one country does not preclude it being a criminal offence justiciable in England & Wales. However, considerations of what is commonly known as “double jeopardy” (and specifically pleas of autrefois acquit and autrefois convict) will apply. This often leads to conflict, or enforced co-operation, between investigating and prosecuting bodies from different countries.

Corporate Criminal Liability and White-Collar Crime

Corporations are a type of “non-natural person” that can be liable for criminal offences. A non-natural person is a legal entity that has a legal personality distinct from that of its constituent individuals. Incorporated bodies include entities such as a public limited company (plc) and a private limited company (Ltd.), and a limited liability partnership (LLP). Given that many corporates are involved in the carrying out of some business or other, the law of corporate criminal liability features heavily in white-collar criminal practice.

Corporate Criminal Liability via the “Identification Principle”

A corporate may be liable for a criminal offence that requires not only an actus reus but also a mens rea by way of the “identification principle”. A corporate can be held criminally liable for acts and omissions committed by a natural person if that person is “identified” with the corporate (sometimes described as the individual being a “directing mind and will” of the corporate). The acts or omissions of the individual are taken to be the acts or omissions of the corporate.

The test of which individuals can be “identified” with the corporate was first set out in the case of Tesco Supermarkets v Nattrass [1972] AC 153: the fundamental point is that the person must be in such a position within the corporate that they are properly to be regarded as exercising the powers of the corporate, and not merely acting as the corporate’s servant or agent. Generally, a corporate’s constitution and its memorandum/articles of association would define which individuals exercise the power of the corporate but other factors could have an impact, such as seniority of the individual, delegation of powers and chains of command within the corporate. These were referred to as the “primary rules of attribution”. In addition to the primary rules, the corporate could only be liable for an act of the relevant individual that is within the “scope” of their office with the company.

The test has been criticised because it tends to restrict the identification principle to a small subset of people, and thus puts significant limitations on the acts and omissions for which a corporate can be held criminally liable. In Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500, the Privy Council devised further “special” rules of attribution to sit alongside the primary rules. Essentially, the courts could look at the policy behind legislation to determine who, as a matter of law, should be taken to be capable of being identified with the corporate beyond those identified by the primary rules of attribution. In this way, the individuals through whom liability could attach might be expanded to a wider range of employees, servants or agents. The question of when it is appropriate to go beyond the primary rules of attribution was addressed in St Regis Paper Co Limited [2011] EWCA Crim 2527.

Despite the criticism of the test from Tesco Supermarkets v Nattrass, it was affirmed as the relevant test in Serious Fraud Office v Barclays plc and Another [2018] EWHC 3055 (QB). In that case, the High Court also recognised further principles that applied when considering the identification principle, including that a corporate may delegate its powers and responsibilities to committees. The High Court acknowledged that the primary rules of attribution were very restrictive (perhaps disproportionately so when dealing with the operations of large corporates) but there was always the option for statutory offences to be created that dealt with this.

Statutes Defining Specific Rules of Corporate Criminal Liability

The limitations of the identification principle have led to the creation of corporate criminal offences with their own specific rules of criminal liability that do not have to rely on the identification principle. However, the law has developed in a piecemeal fashion and there has been no unified theory underpinning these various offences.

Section 7 of the BA 2010 created liability for a criminal offence for a commercial organisation if a person associated with it engages in bribery. The corporate entity is under a duty to conduct itself so that people associated with it do not commit bribery, albeit with a due diligence defence if adequate procedures have been put in place to prevent bribery. That can be contrasted with the offence of corporate manslaughter created by Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007), under which a corporate can be liable for an offence if the way in which its activities are managed and organised causes a person’s death and amounts to a “gross breach of a relevant duty of care”.

Even where the law has created other “failure to prevent” offences, there are differences in the rules that apply. Corporate criminal liability as set out in the offences of failure to prevent facilitation of tax evasion offences (under Sections 45 and 46 of the Criminal Finances Act 2007 (CFA 2017)) is worded differently from that in the failure to prevent bribery offence under Section 7 BA of the 2010, despite both following the “failure to prevent” model.

Corporate Criminal Liability for Strict/Absolute Liability Offences

A corporate may be liable for an offence of strict or absolute liability in the same way as a natural person, as there is no requirement for mens rea to be proved.

Corporates and Vicarious Liability

The general rule is that a person (corporate or otherwise) cannot be held criminally liable for the act of another to which they are not a party. However, a corporate can be held vicariously liable for the acts of employees or agents, where provided for by statute. This statutory vicarious liability is to be distinguished from personal liability of a corporate that may arise from a failure to prevent an employee or agent from doing a certain act, or liability for a breach of a duty imposed upon the corporate that has been delegated to an employee or agent.

Relationship Between Corporate Criminal Liability and Liability of Individuals

Subject to the rules outlined above, a corporate can be prosecuted in the same way as an individual, and can be prosecuted alongside individuals for the same offence. A corporate can also be prosecuted alongside its own directors, even if those directors are the directing wills and minds through which the corporate’s liability attaches. An individual can be liable as a secondary party under Section 8 of the Accessories and Abettors Act 1861 (AAA 1861) to an offence committed by a corporate, and vice versa. There is no rule or policy dictating whether the prosecution of an individual or a corporate takes primacy.

Individuals and corporates can be charged with conspiracy, although a corporate cannot conspire with an individual if that individual is the directing will and mind through which the corporate’s liability attaches.

If a corporate is liable for a criminal offence, it does not necessarily follow that its officers, agents or employees will also be liable, nor does the corporate’s liability necessarily prevent or extinguish the liability of individuals. Some statutes have specific provisions detailing the liability of associated individuals, such as employees, directors or managers, where a corporate is criminally liable (eg, where the corporate has committed the offence with the consent or connivance of the individual).

Criminal Liability of Corporates after Merger/Acquisition

As with an individual, where a corporate ceases to exist it no longer attracts criminal liability; if a corporate entity is extinguished in a merger or acquisition, then its criminal liability is extinguished with it. In the case of Serious Fraud Office v Amec Foster Wheeler Energy Limited [2021], the corporate concluded a Deferred Prosecution Agreement (DPA) with the Serious Fraud Office (SFO) in relation to historic bribery offences. After the indictment period, the corporate’s parent company was acquired twice by other companies in succession, but its existence as the same corporate entity continued. A DPA was able to be concluded in relation to that entity, and the court commented that the current parent company had given an undertaking to pay the financial penalty owed by the offending corporate, despite the fact that it had inherited no criminal liability through its acquisition.

Compensation, Confiscation and White-Collar Criminal Offences

It is for a court to decide whether it should order a defendant found guilty of a criminal offence to pay compensation for any personal injury, loss or damage to the victim of that offence. Such compensation orders are governed by Sections 133 to 135 of the Sentencing Act 2020 (SA 2020). There is no special law or procedure for white-collar criminal offences that allows victims or other parties to make a claim for damages as part of the criminal proceedings.

The issue arose during the sentencing of Glencore Energy UK Limited for bribery offences (see Nigeria v Serious Fraud Office [2022] EWCR 2). The company had pleaded guilty to various offences of bribery, two of which had either been committed in Nigeria or had targeted officials in Nigeria. The Federal Republic of Nigeria (FRN) claimed that it had suffered loss as a result of the corruption, but the SFO indicated that it would not be seeking a compensation order because the amount of compensation could not be readily ascertained (following the principle in R v Stapylton [2012] EWCA Crim 728). The court ruled that Sections 133 to 135 of the SA 2020 only allowed for submissions from the prosecution and the offender, and FRN (as a third party) did not have standing to make a compensation application (applying R v Bewick [2007] EWCA Crim 3297).

In addition to compensation, the Crown Court has the ability to make a confiscation order under the Proceeds of Crime Act 2002 (POCA 2002) to recover the proceeds of criminal offending. The statutory scheme governing confiscation orders is of general application, and there is no special scheme covering white-collar criminal offences. Confiscation does not technically apply to DPAs, but they may include disgorgement of profits that has a similar effect.

Potential Reform – the Law of Corporate Criminal Liability

The Law Commission’s June 2022 report (www.lawcom.gov.uk) setting out options for the reform of corporate criminal liability followed complaints from prosecutors about the difficulties of using the identification principle to prosecute companies with complex management structures.

The government has opted against a complete overhaul of the law of corporate criminal liability in favour of retaining the individualistic approach. However, the Economic Crime and Corporate Transparency Bill (ECCT Bill) (which, at the time of writing, is undergoing amendment and debate in Parliament) seeks to broaden the scope of the identification principle. Under the ECCT Bill, a corporate would be criminally liable for certain economic crimes if a “senior manager” committed the relevant offence (ie, someone who plays a significant role in making decisions about how the whole or a substantial part of the activities of a corporate are to be managed or organised, or who plays a significant role in the actual management or organisation of the whole or a substantial part of those activities). This replaces the “directing will and mind” test in relation to some specified economic offences.

Potential New White-Collar Criminal Offence – Failure to Prevent Fraud

The ECCT Bill includes provisions creating a new offence of failure of a corporate to prevent fraud. Originally, this failure to prevent offence had been restricted to “large organisations” (ie, corporates with two or more of the following attributes: i) a turnover more than GBP36 million; ii) a balance sheet total of more than GBP18 million; or iii) more than 250 employees), but amendments by the House of Lords expanded the proposed offence to all corporates, regardless of size. The Lords also amended the Bill to create an additional offence of failure to prevent money laundering. These amendments were rejected and, at the time of writing, it remains to be seen what will remain when the Bill receives final assent.

Various authorities in England & Wales are tasked with investigating and prosecuting white-collar criminal offences.

• The Crown Prosecution Service (CPS) has a general mandate to prosecute criminal offences in England & Wales, the investigation of which is usually carried out by the police, the National Crime Agency or other investigative bodies, such as HMRC.
• The SFO investigates and prosecutes serious and/or complex offences of fraud, bribery and corruption.
• The Insolvency Service has powers to investigate a director’s conduct and allegations of serious corporate abuse at limited companies and limited liability partnerships. Its Legal Services Directorate can conduct criminal proceedings for offences within the remit of the Department for Business and Trade.
• The Competition and Market Authority investigates unfair market activity and prosecutes criminal cartel offences.
• The Financial Conduct Authority is a regulatory body that also investigates and prosecutes offences relating to financial services.
• Various regional Trading Standards teams investigate and prosecute offences committed by rogue traders, including fraud.

There are myriad ways in which investigations into white-collar criminal offences can be initiated. Frequently, investigations will be commenced upon a complaint being made by an alleged victim of an offence. Given the potential overlap between the remits of some investigating bodies, it is not unusual for an investigation commenced by one investigating authority to be passed to another. It is also not unusual for investigations into large-scale corporate white-collar criminal offences to be initiated by tip-offs by insiders, co-operating suspects/defendants or whistle-blowers.

It is not possible to give a summary of all the investigatory powers at the disposal of the authorities, nor the nuances of their particular powers or mandates. In general, investigating bodies such as the police have the following powers, among others:

• the power to arrest suspects and interview them under caution;
• the power to seize, image and retain documents, electronic devices (computers, servers, mobile telephones, etc), physical exhibits and any other material that may be relevant to an investigation;
• the power to compel third parties to produce material that they may hold that is relevant to an investigation; and
• requests for mutual legal assistance from foreign jurisdictions.

Generally, investigative authorities do not have the power to compel those under investigation to give statements, documents or other materials that could be incriminating. However, those under investigation can be served with notices to provide access to information from electronic devices and other material. Failure to provide such access can lead to prosecution.

Section 2 Notices/Section 60 Notices

A power that is encountered specifically in relation to the investigation of white-collar criminal offences is that possessed by the SFO under Section 2 of the Criminal Justice Act 1987 (CJA 1987). The SFO can require a person under investigation (or any other person who is reasonably believed to have relevant information) to answer questions or otherwise provide that information. It can also require the person to produce specified documents and provide explanations for them. It is a criminal offence to fail to comply with a Section 2 notice without reasonable excuse, which carries a maximum penalty of six months’ custody.

The power granted under Section 2 of the CJA 1987 seems like a departure from the general rule against self-incrimination. However, the information given by the subject of a Section 2 notice cannot be used against them in a subsequent prosecution for the offence under investigation. It may still be used, in specific circumstances, as evidence in a prosecution of offences other than those under investigation, or in a prosecution for making false or misleading statements in response to the notice.

A similar investigative power is available to the Director of Public Prosecutions (DPP) by virtue of Section 60 of the Serious Organised Crime and Police Act 2005 (SOCPA 2005) in respect of specified offences, many of which can fall under the umbrella of white-collar criminal offences. With the expansion of efforts to combat economic crime, the exercise of this power may well be used more readily.

There is nothing in law that requires corporates to undertake internal investigations in response to allegations or concerns about conduct within the corporate. However, regulatory rules and internal procedures will often cause corporates to investigate allegations of misconduct, in order to safeguard their reputation or business. Even if criminal liability is not made out or offences are not prosecuted, the approach taken by a corporate will undoubtedly have significance to regulators, the government or the public at large. A corporate that relies on business from public contracts may wish to show that it has “cleaned its house” so that it will be trusted to undertake such work and/or avoid debarment.

If a corporate is under investigation and wishes to secure a DPA, one of the key tests is whether the corporate has co-operated fully with the investigation. This includes the provision of witness accounts, documents and other information about the operations of the company. For this to be done properly, the corporate will likely have to conduct a thorough internal investigation.

Internal investigations are distinct from SFO or police investigations, and are not subject to the restrictions imposed by statute that afford a suspect rights. However, they are constrained by lacking the same powers as law enforcement officials. Whereas the corporate is usually in control of the materials within its own domain, it may not receive co-operation from third parties involved in the suspected misconduct or impropriety. The case of SFO v ENRC Ltd [2018] EWCA Civ 2006 established that materials produced in an internal investigation where there is the possibility or likelihood of prosecution are legally privileged where they are produced “for the dominant purpose of resisting or avoiding contemplated criminal proceedings against [the company] or its subsidiaries or their employees”.

Mutual Legal Assistance (MLA)

The EU-UK Trade and Cooperation Agreement (TCA) governs MLA in criminal matters between the UK and the European Union. In general terms, the UK-EU arrangements are based on the Council of Europe’s European Mutual Assistance Convention of 1959 (EMCA 1959) and its additional protocols. However, the TCA’s MLA arrangements also retain elements of the European Investigation Order framework, which was applicable to MLA between the UK and EU prior to conclusion of the TCA.

The TCA provides two conditions for an MLA request:

• the request must be necessary and proportionate for the purpose of the proceedings; and
• the requested measure would have also been available under the same conditions in a similar domestic case.

The EMCA 1959 provides two optional grounds for refusal:

• a political and fiscal offence exception; and
• the domestic ordre public – ie, if the requested State considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or its other essential interests.

Refusal based on human rights grounds is also available.

At the multilateral level, MLA is further regulated in sector-specific conventions, including the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the United Nations Convention against Transnational Organized Crime.

At the bilateral level, the UK has concluded MLA treaties with various countries, including Australia, Brazil, Canada, China, Germany, Hong Kong, India, the Netherlands, Nigeria, Saudi Arabia, the United Arab Emirates and the United States of America.

Extradition and White-Collar Crime

The general rules for extradition apply to white-collar criminal offences. On the international plane, extradition arrangements between the UK and the EU are governed by the TCA. Domestically, the Extradition Act 2003 (EA 2003) applies to requests received from a “category 1 territory” – currently EU member states and Gibraltar.

The UK’s extradition arrangements with Council of Europe States outside the EU are governed by the European Convention on Extradition of 1957 on the international plane and by Part 2 of the EA 2003 domestically. In addition, the UK has entered into bilateral extradition treaties with various other countries. Domestically, certain of these States are designated as Part 2 territories so that they do not have to provide evidence to justify the issue of an arrest warrant or evidence of a case to answer.

In all cases, a requesting State must prove beyond reasonable doubt that the offence for which extradition is requested is an “extradition offence”. However, the judge is not concerned with the criminal law in the requesting State. For requests governed by Part 2 of the EA 2003, as well as from EU member states where an arrest has taken place after 31 December 2021, the requesting State must establish “dual criminality”.

The EA 2003 further requires an extradition judge to decide if there are any “bars” to extradition, including double jeopardy, extraneous considerations (eg, whether the request was issued for a political purpose) and the passage of time.

Extradition will be “forum” barred in accusation cases if a substantial measure of the alleged criminal conduct occurred in the UK and the judge decides, taking account of the matters specified in the EA 2003, that extradition would not be in the interests of justice.

If the requested person has been convicted, the judge must consider whether the person was not present when convicted. If they were tried in their absence, the judge will consider whether they were deliberately absent. If they were not deliberately absent, the requesting State has to prove to the criminal standard that the person has the entitlement to a retrial, or review amounting to a retrial. If there is no entitlement to a retrial, the person must be discharged. Otherwise, the judge will go on to consider human rights.

There is a rebuttable presumption that a member state of the Council of Europe will fulfil its obligations under the European Convention on Human Rights. Diplomatic assurances may be given by a requesting State to establish that there is no risk of a violation of a Convention right. For Part 1 accusation cases, the court will also have to consider whether extradition would be proportionate.

The Commencement of White-Collar Criminal Prosecutions

Generally, the decision to bring a prosecution for any criminal offence is within the discretion of a prosecuting authority if it believes that there is a realistic prospect of conviction, and that the prosecution would be in the public interest.

Determining whether there is a realistic prospect of conviction requires an objective assessment of the evidence by the prosecutor, which should include any defence or information advanced. The admissibility of evidence should also be considered.

The public interest should only be considered if there is a realistic prospect of conviction. A prosecution will usually occur if the factors in favour of prosecution outweigh those against. Factors to consider are:

• the seriousness of the offence;
• the suspect’s culpability;
• the circumstances of the offence and the harm caused;
• the suspect’s age and maturity;
• community impact;
• the proportionality of a prosecution; and
• the protection of sources.

Once a prosecution is commenced, its continuation is always at the discretion of the prosecuting agency, and developments affecting the sufficiency of evidence or the public interest should be considered. The only discretion of the courts to prevent the continuation of a prosecution is when it would amount to an abuse of process.

Some statutes impose an additional requirement on a prosecuting authority to seek permission before bringing a prosecution for a particular offences – for example, a prosecution for an offence of insider dealing can only be commenced by or with the consent of the DPP or the Secretary of State.

Initiation of Investigations by the SFO

The SFO may investigate any suspected offence that appears on reasonable grounds to involve serious or complex fraud, bribery or corruption. In determining whether an investigation should be commenced, the SFO will consider the actual or intended harm that may be caused to:

• the public;
• the reputation and integrity of the UK as an international financial centre; or
• the economy and prosperity of the UK.

It will also consider whether the complexity and nature of the suspected offence warrants the application of the SFO’s specialist powers and capabilities to investigate and prosecute.

SFO investigations are distinct from those undertaken by other bodies, as the SFO operates under the Roskill model, whereby investigators and lawyers work in conjunction from the outset of an investigation. This can be contrasted with CPS cases, where the investigation is generally undertaken by the police acting in response to advice and request from lawyers.

Deferred Prosecution Agreements

DPAs were introduced in 2014 by the provisions of the CCA 2013 but can apply retrospectively. DPAs provide a mechanism whereby a corporate (but not an individual) under investigation for a specified offence can agree with the prosecuting body (either the SFO or the CPS) to admit to the facts underlying the offences on an indictment in exchange for the prosecution deferring the prosecution of the corporate on that indictment.

The terms of a DPA can include remedial and punitive measures, such as financial penalties and disgorgement of profits. As long as the corporate abides by the terms of the order for the duration of the order, then the SFO/CPS cannot recommence the prosecution. If there is a breach of the DPA, the SFO/CPS can choose to commence the deferred prosecution or propose an alternative remedy. The statement of facts agreed as part of the DPA can be admitted in evidence in a subsequent prosecution.

DPAs are only available in respect of the offences specified in Schedule 17 of the CCA 2013, most of which can be classed as white-collar crimes. They include offences of cheating the revenue, money laundering, fraud and bribery.

A DPA can only be entered into if given approval by a court, notwithstanding the fact that the parties may have reached an agreement. The Crown Court must first approve of the DPA in principle at a preliminary hearing (in private) on the basis that the DPA is likely to be in the interests of justice with terms that are fair, reasonable and proportionate. Once the final terms are agreed, the court must then also approve the final agreement on the same basis.

Absence of Formal Plea Agreements or Agreements on Sentence

There is no formal system of plea agreements or plea bargaining in England & Wales. When a charge is properly brought (ie, it meets the dual evidential and public interest tests), a defendant generally faces a choice to plead guilty or to contest the charge at trial. However, the prosecution and defence may engage in negotiations over acceptable pleas to obviate the need for a trial. Usually, the defence will seek to persuade the prosecution that the pleas offered meet the alleged criminality and/or that there would be no public interest in continuing once those pleas had been entered. Similarly, there is no process by which the prosecution and defence can agree a sentence in advance of pleas being entered – sentencing is completely at the discretion of the sentencing judge.

General Note on Identification of White-Collar Criminal Offences

There are various criminal offences that could fall within the scope of white-collar crime. The statute books are replete with such offences, many of which involve lengthy provisions. It would be impractical to give a summary of the elements of each of them here – instead, we seek to identify the relevant offences and their sanctions.

Company Law Offences

There are various provisions in the Companies Act 2006 (CA 2006) and the Companies Act 1985 (CA 1985) that create offences relating to the governance, management, accounting and trading of companies, including the following.

• Fraudulent trading (Section 993 of the CA 2006):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – ten years’ imprisonment and/or a fine.
• Making a false statement to the registrar of companies (Section 1112 of the CA 2006):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – two years’ imprisonment and/or a fine.
• Destruction, mutilation or falsification of company documents (Section 450 of the CA 1985):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – seven years’ imprisonment and/or a fine.

Corporate Fraud Offences

With regard to corporate fraud, such offending may currently be covered by the provisions of the Fraud Act 2006 (FA 2006) or the Theft Act 1968 (TA 1968), but it is likely that a new corporate offence of failing to prevent fraud will come into existence in the near future. Such offences include the following.

• Fraud by false representation/abuse of position of trust/failure to disclose (Sections 2–4 of the FA 2006):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – ten years’ imprisonment and/or a fine.
• False accounting (Section 17 of the TA 1968):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine.
2. maximum penalty on conviction on indictment – seven years’ imprisonment and/or a fine.
• False statements by company directors (Section 19 of the TA 1968):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – seven years’ imprisonment and/or a fine.

Bribery and Corruption Offences

Prior to the BA 2010, bribery and corruption offences were provided for by the Prevention of Corruption Acts 1889 to 1916. Offences committed before July 2011 may still be prosecuted under the old statutes, but the BA 2010 put in place a new statutory regime, covering:

• bribery of another (Section 1 of the BA 2010);
• being bribed (Section 2 of the BA 2010);

• bribery of foreign public officials (Section 6 of the BA 2010) – for offences under Sections 1, 2 and 6, the maximum penalty on summary conviction is 12 months’ imprisonment and/or a fine, and the maximum penalty on conviction on indictment is ten years’ imprisonment and/or a fine; and
• failure of a commercial organisation to prevent bribery (Section 7 of the BA 2010) – the offence is triable only on indictment and, as it can only be committed by a corporate, is punishable only by a fine.

More general offences of corruption that are linked to public officers fall under the common law offence of misconduct in a public office. This covers situations in which a public officer, without reasonable excuse or justification, wilfully neglects to perform their duty or willingly misconducts themselves to such a degree that it amounts to an abuse of the public’s trust in them.

There is no overarching anti-bribery regulation nor any legal obligation for corporates to have a compliance programme. However, the government has published guidance for commercial organisations on the measures that they should have in place to prevent bribery (see Bribery Act 2010: Guidance to Help Commercial Organisations Prevent Bribery). An organisation that does not follow such guidance is unlikely to be able to avail itself of the “adequate procedures” defence to a charge under Section 7 of the BA 2010.

Offences involving insider dealing, market abuse and financial services fall squarely within the bracket of white-collar criminal offences. Such offences include the following.

• Insider dealing (Sections 52 and 53 of the CJA 1993):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – ten years’ imprisonment and/or a fine.
• Breach of the general prohibition against carrying on a regulated financial activity (eg, money lending) in the UK unless authorised or exempt (Sections 19 and 23 of the Financial Services and Markets Act 2000):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – two years’ imprisonment and/or a fine.
• Making misleading statements and impressions relating to agreements, investments or benchmarks of types specified by Order made by the Treasury (Sections 89, 90 and 91 of the Financial Services Act 2012):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – ten years’ imprisonment and/or a fine (if committed after 1 November 2021, seven years otherwise).

There are numerous criminal offences dealing with tax fraud by both individuals and corporates, some of which may fall within the realms of white-collar crime. These include the following.

• Cheating the revenue (at common law):
1. maximum penalty on conviction on indictment – imprisonment at large and/or a fine.
• Income tax evasion (Section 106A of the Taxes Management Act 1970):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – seven years’ imprisonment and/or a fine.
• Failure of a corporate to prevent the commission by an associated person of either UK or foreign tax evasion facilitation offences (Sections 45 and 46 of the CFA 2017):
1. these offences apply only to corporates and are therefore only punishable by a fine.
• Fraudulent evasion of VAT (Section 72 of the Value Added Tax Act 1994):
1. maximum penalty on summary conviction – six months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – seven years’ imprisonment and/or a fine.

The Companies Acts contains over 150 provisions that are criminal offences. Many relate to failures to notify the Registrar of Companies of matters affecting the company and its constitution, or to provide information to shareholders. As referred to in 3.1 Criminal Company Law and Corporate Fraud, Section 1112 of the CA 2006 creates a general false statement offence of knowingly or recklessly delivering a document to the Registrar, or making a statement to the Registrar, that is materially misleading, false or deceptive.

Other offences relating to improper financial record-keeping include false accounting (Section 17 of the TA 1968), false statements by company directors (Section 19 of the TA 1968), and the destruction, mutilation or falsification of company documents (Section 450 of the CA 1985), which are covered in 3.1 Criminal Company Law and Corporate Fraud.

Cartel offences are created by Section 188 of the Enterprise Act 2002 and include activity such as price-fixing, bid-rigging and limitation/prevention of the supply of a product or service. The maximum penalty on summary conviction is 12 months’ imprisonment and/or a fine; the maximum penalty on conviction on indictment is five years’ imprisonment and/or a fine.

Various statutes created criminal offences which target offending behaviour that adversely affects consumers. The most prominent are those created by the Consumer Protection from Unfair Trading Regulations 2008/1277:

• engaging in an unfair commercial practice (Regulation 8);
• engaging in a commercial practice involving a misleading action (Regulation 9);
• engaging in a commercial practice involving a misleading omission (Regulation 10);
• engaging in an aggressive commercial practice (Regulation 11); and
• engaging in a commercial practice that is, in all circumstances, considered to be unfair (eg, displaying quality marks without the necessary authorisation) (Regulation 12):
1. maximum penalty on summary conviction – a fine; and
2. maximum penalty on conviction on indictment – two years’ imprisonment and/or a fine.

Various other statutes aim at consumer protection indirectly through the creation of offences relating to the misuse of intellectual property (Section 107 of the Copyright, Designs and Patents Act 1988), the misuse of trade marks (Section 92 of the Trade Marks Act 1994) and the unauthorised copying of registered designs (Section 35ZA of the Registered Designs Act 1949).

In general, cybercrime is a modus operandi that intersects with many different offences, particularly fraud. However, there are specific provisions under the Computer Misuse Act 1990 (CMA 1990) that create offences involving the integrity of computer systems, as follows.

• Unauthorised access of a computer (Section 1 of the CMA 1990):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction in indictment – two years’ imprisonment and/or a fine.
• Unauthorised access of a computer with intent to commit further offences (Section 2 of the CMA 1990):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – five years’ imprisonment and/or a fine.
• Unauthorised acts with intent to impair the operation of a computer (Section 3 of the CMA 1990):
1. maximum penalty on summary conviction – 12 months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – ten years’ imprisonment and/or a fine.
• Unauthorised acts causing or creating risk of serious damage (Section 3ZA of the CMA 1990):
1. triable only on indictment – maximum penalty 14 years’ imprisonment and/or a fine.

There is no law creating a specific offence of computer fraud, nor a law protecting company secrets. The latter would likely be a civil matter under an action for misuse of confidential information.

Sanctions Offences

UK sanctions regimes criminalise prohibited activity committed with the requisite mens rea (primary offences). For example, it is an offence to deal with the funds of a designated person without a licence, knowing or having reasonable cause to suspect that the relevant transaction is prohibited. There are also offences that can be committed relating to:

• licences applied for or issued to permit otherwise prohibited conduct; and
• requirements to report or requests to provide information or documents to the Office of Financial Sanctions Implementation (OFSI).

The following also applies.

• Licensing – it is an offence to fail to comply with any condition of a licence, and to knowingly or recklessly provide false information or documentation for the purpose of obtaining a licence.
• Reporting – it is an offence to fail to inform HM Treasury as soon as practicable if a relevant firm knows or has reasonable cause to suspect that a person is a designated person or has breached financial sanctions regulations, and the information on which the knowledge or suspicion is based came to them in the course of carrying on their business.
• Information – it is an offence to:
1. fail to comply with a request from OFSI for information or the production of documents without a reasonable excuse;
2. knowingly or recklessly provide materially false information or documentation in response to such a request;
3. destroy, mutilate, deface, conceal or remove any document with intent to evade requirements under a request for information or documents; or
4. otherwise intentionally obstruct HM Treasury in respect of its powers to make such a request.
• Confidentiality – it is an offence for a person who is provided with specified confidential information, or who obtains it, to disclose such information without lawful authority if that person knows or has reasonable cause to suspect that the information is to be treated as confidential.

Primary offences and licensing offences are punishable by up to ten years’ imprisonment and/or a fine. Reporting and information offences are punishable by a fine or imprisonment of up to 12 months. Confidentiality offences are punishable by up to two years’ imprisonment and/or a fine (Section 17 of the Sanctions and Anti-Money Laundering Act 2018).

There is no separate offence of concealment in the criminal law of England & Wales.

Offences of Encouraging/Assisting Crime and Conspiracy to Commit Crime

The law distinguishes between principal offenders and those that assist or encourage another to commit a crime, known as accessories or secondary parties. A principal carries out the substantive offence, whilst a secondary party aids, abets, counsels or procures the offence. Section 8 of the AAA 1861 enables a secondary party to be prosecuted as if they were a principal. To be a secondary party, a defendant must encourage or assist the commission of the offence by the principal, and must intend to do so.

The Serious Crime Act 2007 (SCA 2007) also creates offences of encouraging or assisting offences that do not rely on secondary liability, as follows:

• intentionally encouraging or assisting an offence (Section 44 of the SCA 2007);
• encouraging or assisting an offence believing it will be committed (Section 45 of the SCA 2007); and
• encouraging or assisting offences believing one of more will be committed (Section 46 of the SCA 2007).

Sanctions for these offences are indexed to the sanctions that would be available for the anticipated offence.

It is appropriate to charge conspiracy to commit an offence in circumstances where either no substantive offence takes place, or it is not possible to prove participation in a substantive offence but it can be proved that there was an agreement to commit an offence. Section 1(1) of the Criminal Law Act 1977 enables the prosecution of statutory conspiracies; they are triable only on indictment. The maximum sentence is the maximum available for the underlying substantive offence.

The interplay between individual and corporate liability for offences is covered in 1.4 Corporate Liability and Personal Liability.

Between POCA 2002 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017/692 (the “Money Laundering Regulations”) there is a comprehensive statutory regime dealing with various money laundering, including:

• concealing/disguising/converting/transferring/removing criminal property (Section 327 of POCA 2002);
• entering into/becoming concerned in money laundering arrangements (Section 328 of POCA 2002);
• the acquisition/use/possession of criminal property (Section 329 of POCA 2002) – the offences under Sections 327–329 carry a maximum penalty on summary conviction of 12 months’ imprisonment and/or a fine, and a maximum penalty on conviction on indictment of 14 years’ imprisonment and/or a fine;
• failure to report suspected money laundering (Sections 330–332 of POCA 2002);
• prejudicing a money laundering investigation/falsifying, concealing, destroying or disposing of documents relevant to a money laundering investigation (Section 342 of POCA 2002) – the offences under Sections 3330–332 and 342 carry a maximum penalty on summary conviction of 12 months’ imprisonment and/or a fine, and a maximum penalty on conviction on indictment of five years’ imprisonment and/or a fine;
• disclosing information likely to prejudice a money laundering investigation (“tipping-off”) (Sections 333A of POCA 2002):
1. maximum penalty on summary conviction – three months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – two years’ imprisonment and/or a fine; and
• breach of a relevant requirement imposed by the Money Laundering Regulations (Regulation 86 of the Money Laundering Regulations):
1. maximum penalty on summary conviction – three months’ imprisonment and/or a fine; and
2. maximum penalty on conviction on indictment – two years’ imprisonment and/or a fine.

General defences, including those for white-collar crimes, can be divided into two categories:

• defences that involve a denial of the basic elements of the actus reus and mens rea; and
• defences that do not deny the elements of the offence but rely on other circumstances of excuse or justification (eg, duress).

The existence of an effective compliance programme is not a defence to criminal liability, but it may be relevant to specific “due diligence” and “adequate procedure” defences for specific offences (eg, Section 7 of the BA 2010).

Generally speaking, there are no exceptions or exemptions for white-collar criminal offences. Criminal prosecutions can be brought where a prosecutor has determined that there is sufficient evidence to provide a realistic prospect of conviction on each charge, and that the prosecution would be in the public interest. There is no further de minimis test that must be met and there are no exempt industries or sectors.

An offender’s co-operation with an investigation, the making of early admissions and/or voluntarily reported offending are often prescribed as mitigating factors under applicable sentencing guidelines. DPAs require extensive co-operation and self-disclosure to persuade the prosecution to enter into an agreement, but also to make sure that the court approves the agreement between the parties. Sanction enforcement requires self-reporting as a mitigating factor when authorities decide what action to take in relation to a sanctions breach (as well as applicable civil monetary penalties).

When a defendant offers to provide information or to give evidence about the criminal activities of others, they may enter a written agreement with a specified prosecutor (a “SOCPA agreement”). A defendant may seek to obtain immunity from prosecution or receive a reduced sentence in return for providing information. The sentence reduction will depend on the timing, nature, extent and value of the assistance (Sections 71–75B of the SOCPA 2005).

Whistle-blowers disclose information they reasonably believe shows wrongdoing or the covering up of wrongdoing. Employees and workers that blow the whistle are entitled to protection from unfair dismissal as a result of their disclosures under the Public Interest Disclosure Act 1998.

Public bodies, such as the NHS, and some companies have developed whistle-blower programmes, not only in the public interest but also to protect their management from the consequences of wrongdoing that may go unchallenged and have more serious repercussions upon later discovery.

Protections are not available if the whistle-blower commits a criminal offence or breaches legal professional privilege. In March 2023, the Department for Business and Trade announced a review of the whistle-blower framework, and this is currently at the evidence gathering stage.

In all criminal proceedings, including those for white-collar criminal offences, the prosecution bears the burden of proving an offence to the requisite criminal standard – ie, so that the tribunal is sure that the offence has been committed.

Sentencing White-Collar Offences

The Sentencing Council publishes guidelines for the sentencing of criminal offences. Sentencing courts are obliged to have regard to the relevant sentencing guidelines. Many white-collar criminal offences, such as fraud, bribery and money laundering, have applicable sentencing guidelines, and there is a dedicated guideline for dealing with the sentencing of corporate offenders.

A credit scheme applies for guilty pleas, with the maximum available discount being 33% for a plea at the earliest opportunity and 10% for a plea on the day of trial.

The DPA Codes of Practice stipulate the approach to penalties in the context of DPAs, which should also take into account the guidelines for sentencing corporates and previous DPA decisions.