Corporate

Businesses, and those who run them, have to comply with a plethora of legislation. Failure to comply can, in some cases, be a criminal offence e.g. in health & safety matters. It’s not just the business that can be prosecuted: sometimes the individual managers e.g. directors, can find themselves in the criminal courts too.

The other side of the coin, of course, is that businesses can be victims of crime, such as theft, fraud, cyber-attacks, and criminal damage.

In Scotland, the decision whether or not to prosecute a crime is made by the procurator fiscal. In a recent change of policy, it is now possible for a decision by the fiscal not to prosecute to be reviewed and overturned.

It all stems from the Crown Office’s recently published ‘Right to Review’ policy. This covers the process under which prosecutors will review decisions not to prosecute where the review is requested by the victims of crime. Victims include individuals, businesses, companies and other organisations.

The policy applies across the whole range of activities undertaken by the Crown Office and Procurator Fiscal Service. It includes not only crimes reported to the fiscal by the police, but also other crimes reported by specialist reporting agencies e.g. HMRC, local authorities and the Scottish Environmental Protection Agency.

In short, a decision not to prosecute may not be the end of the matter. This will be of particular interest to businesses who have suffered a crime. Previously, there would have been no further course of action available to them where the fiscal had decided not to prosecute. Now there may be scope to have that decision re-visited.

For more detailed information on the new process for review, please click here for an update written by our Public Law and Regulatory team. As always, if you would like further information, please do not hesitate to get in touch.

Fiona Beal

Practice Development Lawyer at Brodies LLP
Fiona is a practice development lawyer in Brodies' corporate team. She provides support and knowledge management services in the field of company and corporate law including management of the department styles and know-how bank
Fiona Beal