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Out-Law News 2 min. read

Leniency for self-reporting bribery offenders extended to Scotland


Businesses in Scotland could receive more lenient treatment under new anti-corruption laws if they self-report their offences under a 12 month trial scheme announced by the Lord Advocate.

The Scottish prosecuting authority, The Crown Office and Procurator Fiscal Service (COPFS) has issued guidance on the approach it will take in relation to businesses self-reporting bribery offences (6-page / 360 KB PDF).

The guidance brings Scotland into line with reporting procedures in England and Wales. The Serious Fraud Office (SFO) has encouraged businesses to self-report bribery uncovered in their organisations, in return for leniency.

The Bribery Act creates offences of bribing another person and of being bribed, and a separate offence of bribing a foreign public official.

There is a new offence of failure to prevent bribery by people working for or on behalf of a business, although a defence is available if the company can show that it has adequate procedures designed to prevent bribery in place.

In Scotland, bribery allegations will be investigated by the police and prosecuted by the COPFS.

The police should report all Bribery Act cases to the COPFS' Serious and Organised Crime Division (SOCD). Crown counsel will decide whether to start criminal proceedings, and cases will be referred to specialist prosecutors within the SOCD.

In announcing the new guidance, the COPFS said it would "give consideration to refraining from prosecuting" a business which self-reports bribery, and instead refer the case to the Civil Recovery Unit (CRU) for civil settlement.

The guidance sets out in detail how reports by a company should be made and how the Crown will approach these, and the criteria that the SOCD will apply when assessing self-reported cases.

The Lord Advocate, Frank Mulholland QC, said the initiative was 'not a soft option'.

"In reporting to us, businesses will require to demonstrate that they are taking action to remedy serious misconduct in their organisation. This will protect their reputation," he said in a statement.

"Importantly where it is in the public interest there will be criminal proceedings and in other cases the business will face the sanction of civil recovery of assets," he said.

"Where criminal proceedings are required the business will be entitled to advise the court that that have come forward and have taken steps to deal with the issues," he said.

"This initiative is one of a number of ways we will fight against this serious and insidious crime. I hope that businesses will be encouraged to self-report any cases involving bribery within their organisations without delay," he said.

"The Crown Office announcement which was made after consultation with the SFO is an indication of what we have anticipated for some time," said Barry Vitou, a bribery specialist at Pinsent Masons, the law firm behind OUT-LAW.COM. "The UK authorities are hopeful that businesses will self report violations under the Bribery Act."

The COPFS self-reporting scheme will initially apply for 12 months. Businesses wishing to use the scheme must make a report through a solicitor to the SOCD before 30 June 2012.

The initiative will be reviewed at the end of this 12 month period, although there is no guarantee that it will be extended.

The Crown Office and the SFO will assist each other when cases are reported which have cross-border implications.

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