Collective Knowledge and the Limits of the Expanded Identification Doctrine

Abstract

The Economic Crime and Corporate Transparency Act 2023 expanded the identification doctrine in welcome ways, but, I argue, does not go far enough. Specifically, I contend that the Act’s reforms do not sufficiently respond to the threat of senior managers who culpably interfere in the proper flow of information within the company to orchestrate harmful or risky practices by others, all while seeking to avoid liability by preventing any individual from forming the full mens rea of any economic crime. How should the criminal law respond to this gap? I argue it would be problematic to respond by extending individual liability even further—say, by expanding the already ‘disturbingly wide’ inchoate offences in the Serious Crime Act 2007. Instead, the collective knowledge doctrine provides a tailor-made solution to these scenarios. This doctrine would permit courts (in narrow circumstances) to aggregate individuals’ mental states within the company to construct a distinct corporate mens rea. I argue that section 196 of the 2023 Act, which expands the identification doctrine, could be read to incorporate a narrow version of the collective knowledge doctrine—at least if courts are willing to adopt a purposivist orientation aimed at giving effect to the wider aims of Parliament. A restricted version of the collective knowledge doctrine would have normative benefits and so, I suggest, is worth putting to the courts through test litigation.