The Law at an Intersection: A Meeting of Attribution, Criminal Law, and the Constructive Trust
| Published date | 01 March 2023 |
| Author | Weiming Tan |
| Date | 01 March 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12763 |
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Modern Law Review
DOI:10.1111/1468-2230.12763
The Law at an Intersection: A Meeting of Attribution,
Criminal Law, and the Constructive Trust
Weiming Tan∗
The principles of corporate attribution have always been a complex area of law, rife with un-
certainty and controversy. The recent Supreme Court’s decision in Crown Prosecution Service v
Aquila Advisory Ltd is notable for clarifying the scope of the principle as articulated in its previ-
ous decision of Bilta (UK) Ltd vNazir. This time,however, the Supreme Court was confronted
with an issue that was hitherto unaddressed by previous courts: whether proprietary r ights to
which a principal would otherwise be entitled against his duciary could be asserted in the face
of conscation orders obtained by the Crown Prosecution Service against the duciary under
the Proceeds of Crime Act 2002. This article argues that the reasoning and outcome in this
signicant decision are unsatisfactory.
INTRODUCTION
The law on corporate attribution has raised dicult and important legal and
policy issues, as evidenced in the recent decisions from the highest appellate
courts across the common law world.1However,the UK Supreme Court’s lat-
est decision on attribution in Crown Prosecution Service vAquila Advisory Ltd2
(Aquila) has elevated the complexity and signicance of the issues related to
attribution to a new level. The statement by Lord Stephens (who wrote the
judgment for the Supreme Court) – the ‘central issue in this appeal concerns
the attr ibution of the former directors’ fraud to VTL’3– downplays the signif-
icance of this decision as the decision raises the fundamental issue of whether
the wrongdoing of directors should be attributed to the company in order to
allow equitable principles to override the criminal law.Pr inciples of corporate
attribution, criminal law, and equity are at stake.
It is argued that the Supreme Court’s failure to attribute the former directors’
wrongdoing to the company had the eect of exempting the defendant,Aquila
Advisory Limited (AAL), from the law prohibiting money laundering, because
∗Lecturer, Faculty of Law, National University of Singapore. My thanks to Ernest Lim for com-
ments on an earlier draft. Thanks arealso due to the anonymous reviewer for raising several thought-
provoking observations. All errors are mine.
1 In the UK, see for example Singularis Holdings Ltd vDaiwa Capital Markets Europe Ltd [2019]
UKSC 50; in Singapore, see for example Red Star Marine Consultants Pte Ltd vPersonal Represen-
tatives of Satwant Kaur [2019] SGCA 76; in Hong Kong, see for example Moulin Global Eyecare
Tra d i n g L t d vCommissioner of Inland Revenue [2014] HKCFA 22; in Trinidad and Tobago, see
Julien vEvolving Tecknologies and Enterprise Development Co Ltd [2018] UKPC 2.
2 [2021] UKSC 49.
3ibid at [85].
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited. (2023)86(2) MLR 536–550
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