Scottish corporate bribery self-reporting scheme to be extended for further year

The initiative, which is reviewed annually, will continue to run in its current form until 30 June 2017, according to updated guidance published by COPFS (8-page / 183KB PDF).

"This means that Scotland continues to encourage corporate self-reports of bribery offences by offering the carrot of an opportunity to negotiate an entirely out-of-court civil settlement," said regulatory expert Tom Stocker of Pinsent Masons, the law firm behind Out-Law.com. "With five concluded corporate self-reports and civil settlements in recent years, the Scottish self-reporting and civil settlement regime is gaining traction."

The Scottish corporate self-reporting initiative was introduced on 1 July 2011, to coincide with the entry into force of the 2010 Bribery Act. It allows companies that discover bribery problems within their organisation to come forward and disclose it to COPFS in return for gaining an opportunity to draw a line under the matter by way of civil settlement rather than full criminal prosecution.

The regime is separate to and distinct from the self-reporting regime and deferred prosecution agreement (DPA) criteria that operate in England, Wales and Northern Ireland. DPAs are available to businesses that self-report misconduct in a variety of circumstances, provided strict conditions set by a judge are met. In Scotland, the self-reporting regime only covers offences under the Bribery Act or conduct that would "constitute an analogous offence under the law as it is before the Act comes into force" if it took place before 1 July 2011.

Businesses wishing to self-report potential offences must do so via a solicitor, who must then submit a report to COPFS' Serious and Organised Crime Unit (SOCU). The business must commit to "meaningful dialogue" with SOCU throughout its investigations, and to share the results of their internal investigations with SOCU. SOCU will then take a decision about whether to refer the case to the Civil Recovery Unit (CRU) for civil settlement, or whether it is in the public interest to proceed to full prosecution. This will usually depend on the seriousness of the offence.

COPFS has entered into a memorandum of understanding with the Serious Fraud Office (SFO) (10-page / 968KB PDF) in relation to cases that involve both Scottish jurisdiction and English, Welsh or Northern Irish jurisdiction. As a general rule, if the SFO is presented with a report from a business which clearly relates to conduct in, or predominantly in, Scotland then it will refer the company to SOCU. The same will also apply in reverse.

Where there are cross-border issues, cases will be considered individually, according to the COPFS guidance. Factors that suggest that a business should report to SOCU in the first instance include where the business has its headquarters or registered office in Scotland; predominantly carries out its business in Scotland; and whether the wrongdoing identified by the business has taken place in or mostly in Scotland, according to the guidance.