Since 1 July 2011, the Crown Office and Procurator Fiscal Service ("COPFS") has offered businesses the opportunity to self-report bribery offences in return for the opportunity to negotiate an alternative to prosecution.
The self-reporting regime enables organisations to make a report to the Serious Organised Crime Unit (SOCU) within the COPFS. A self-report should follow a thorough investigation of the conduct of concern and ask the COPFS to consider refraining from prosecution of the business, and to instead consider a civil financial penalty in settlement.
The regime was introduced following the introduction of the Bribery Act 2010 to "highlight the Crown’s commitment to encouraging good corporate governance and to creating a corporate culture in which bribery is not hidden". Since the self-report initiative began, a total of £16.11 million has been remitted to the Scottish Consolidated Fund.
The initiative is a matter of COPFS policy (reviewed annually by the Lord Advocate) and to date only applied to bribery.
However, COPFS has today significantly expanded the range of offences eligible to be self-reported. This update coincides with the introduction of the new failure to prevent fraud offence under the Economic Crime and Corporate Transparency Act 2023 ("ECCTA") which also comes into force today. Please see our previous updates on the failure to prevent fraud offence here.
The new policy can be found here and the key development is that bodies corporate will be able to report to COPFS conduct within their organisations which may constitute one or more of the following offences:
- Failure to prevent bribery (section 7 of the Bribery Act 2010)
- Failure to prevent facilitation of tax evasion (sections 45 and 46 of the Criminal Finances Act 2017)
- Failure to prevent fraud (section 199 of the Economic Crime and Corporate Transparency Act 2023)
- Offences committed by a senior manager of a business, which are attributed to the business (section 196 of the 2023 Act)
The updated COPFS policy reiterates that businesses must have conducted a thorough internal investigation and must provide full disclosure of wrongdoing, as well as evidence of remedial action taken to prevent further unlawful conduct. It is also expected that businesses will be committed to an open and honest dialogue with COPFS, and to meaningful cooperation with any further investigation.
The COPFS has stated that the expansion of the self-report initiative reflects the Lord Advocate’s commitment to evolving policy in line with developments in economic crime legislation and enforcement, and to robustly tackling fraud and other forms of economic crime.
An organisation wishing to make a report to COPFS must instruct a solicitor to do so on its behalf. Our Corporate Crime & Investigations team are experienced in supporting businesses with each stage of the self-reporting regime – including conducting internal investigations and working with the COPFS once a self-report has been submitted.
Please contact us if you would like to discuss matters further
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