Those of you who have been following our updates on the progress of the Bribery Act 2010 will be interested to read the Crown Office’s recent guidance on ‘self-reporting’ of bribery offences. I have seen other law firms (which will remain nameless) welcome this guidance as helpful clarification for Scottish businesses but I’m not so sure. The guidance describes how the Lord Advocate will implement a 12 month initiative aimed at allowing businesses to tell the Crown about conduct which they have discovered and which might amount to an offence under the 2010 Act (or the earlier anti-bribery Acts). The ‘benefit’ of doing so is that businesses might avoid prosecution and be referred instead to the Civil Recovery Unit – leading in due course to a financial penalty rather than criminal conviction. But – understandably given that the Crown cannot give any cast iron guarantees in advance – the process of self-referral is not straightforward and it can never be certain that confession will result in protection from prosecution. Any business which wishes to self-report must demonstrate that it has conducted a thorough investigation (possibly using forensic accountants) and it must also agree to disclose ‘the full extent of criminal conduct which has been discovered’. Another key aspect is that any self-reporting must be done via a solicitor – which is no doubt sensible as this is one area where taking legal advice in advance strikes me as absolutely key.
On July 18, 2011