Corporate entities may be criminally liable for the Sections 1 and 6 primary offenses of bribing another person or bribing a foreign public official, where an individual who can be identified as the directing mind and will of the corporate entity committed the offense in the course of his or her duties for the corporate entity.  This is called the identification principle

Determining who is the relevant directing mind and will is fact-specific and not straightforward.  In most cases, the directing mind and will of a company is likely to be limited to its board of directors, managing directors, and potentially other senior officers who carry out management functions for the company and who are implicated in particular criminal conduct, such as bribery.1  It is possible for individuals with less seniority to also be considered the directing mind and will of a company, where it can be established that sufficient authority for the conduct in question has been delegated to them, such that they are in effect able to act as the company for the purposes of the relevant conduct.

To determine who the directing mind and will of a company is, prosecutors will consider various corporate documents such as the company’s constitution and articles of association, the context of the actions taken by senior officers and the company itself.  For more, see The Crown Prosecution, Guidance on Corporate Prosecutions, available here.

The corporate offense of failure to prevent bribery does not require any such identification in order for criminal liability to be established.

1 Tesco Supermarkets Ltd v Nattrass [1972] AC 153. 

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