Camilla de Silva: corporate criminal liability, DPAs, AI and privilege

On 21 June 2018, Camilla de Silva, the Joint Head of Bribery and Corruption of the Serious Fraud Office (SFO) gave a speech on: the future of corporate criminal liability; the SFO’s considerations when entering into a DPA; use of AI to assist with disclosure; and how the SFO will deal with privileged material going forward. Corporate criminal liability Ms de Silva highlighted that the current law on corporate criminal liability, which relies primarily on the identification principle, is an “inadequate model” for attributing criminal liability to a corporate. Under the identification principle the prosecutor must prove that the “directing mind and will” of the company (i) committed the acts amounting to the commission of the offence, and (ii) had the criminal intent to commit those acts. As Ms de Silva pointed out, the identification principle can be problematic as it discourages record keeping, incentivises the company’s Board of Directors to…

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