By Tom Stocker, Partner Pinsent Masons

Anyone dealing with a bribery matter which touches upon Scotland may have noticed that the self-reporting guidance published by the Crown Office and Procurator Fiscal Service expired on 30 June 2014.

We are able to confirm that the guidance and the approach to considering a civil settlement for a self-reporting company has been extended until 30 June 2015.  The guidance simply has not been updated.

We speculate that the reason the guidance has not been formally updated is that consideration is being given to a kilted form of Deferred Prosecution Agreement, which could simply entail extending the self-reporting guidance to cover all economic crimes by companies.  Scotland’s self-reporting regime is currently very narrow in its application as it is restricted to corporate bribery offences only.

It should be noted that the self-reporting process in Scotland differs from that in the rest of the UK.  Scotland is a separate legal jurisdiction from England, Wales and Northern Ireland, with differing rules of criminal evidence and criminal procedure.  Under the Scottish regime, a report by a solicitor and verification by a forensic accountant is required.  Those involved in the collation of source documents will be expected to complete certificates of authentication in accordance with Scotland’s Criminal Procedural Rules and for use in potential subsequent prosecution of individuals.

Scotland is an attractive jurisdiction for a company to self-report (if there are grounds to do so) because settlements are based on disgorgement of the benefit received which, post Weir Group and Abbot Group, is considered to be the gross profit.