PLANS to introduce American-style plea bargains into bribery cases south of the Border could create a “blind spot” that stops Scottish companies from owning up to their mistakes, legal experts have warned.
Bribery acts were introduced in England and Wales, Northern Ireland and Scotland last year to crack down on companies paying back-handers to officials to win contracts and other forms of corruption.
UK Justice Secretary Ken Clarke now plans to introduce deferred prosecution agreements (DPAs) to allow companies to confess to their crimes in return for receiving more lenient sentences.
Such plea bargains are already used in the United States as part of its strict Foreign Corrupt Practices Act.
But Clarke’s proposals only cover England and Wales, sparking concern among some legal commentators that businesses operating in Scotland would not be able to take advantage of DPAs unless the Scottish Government introduces similar measures.
Diane Turner, director of the corporate crime defence team at law firm Burness, said: “The Serious Fraud Office [SFO], which is based in London, has no jurisdiction to investigate crime in Scotland. Crimes committed north of the Border have to be prosecuted by the Lord Advocate. A lot of English lawyers will talk about ‘UK law’ and will forget that there are three jurisdictions – England and Wales, Northern Ireland and Scotland.”
Turner, a former procurator fiscal depute, said: “If the DPAs came in then they might make companies more willing to tackle bribery problems head-on when they are uncovered. They would try to steer any cases in the direction of a DPA rather than a prosecution in the courts.”
Willie Park, an Aberdeen-based senior associate at international law firm Pinsent Masons, warned that continuing uncertainty over who is responsible for enforcement of anti-bribery rules between England and Scotland risks creating a “blind spot” that would undermine the incentive for companies owning up to their mistakes regarding bribery.
Park said: “Global settlements need to be achievable or the resolution being offered to companies will not be effective. The proposed legislation does not make it sufficiently clear, for instance, whether by entering into a plea bargain with the SFO in London, a business with operations in Scotland would also be immune from prosecution by the Crown Office.
“Both agencies have said they will work together in the past, but businesses will want additional comfort before exposing themselves to some potentially very draconian punishments.”
Clarke’s consultation paper stated: “The proposals in this paper would apply only to England and Wales. In Northern Ireland and Scotland, much of the criminal justice system is devolved, but matters relating to corporate law are broadly reserved.
“We will therefore discuss further with the Scottish and Northern Ireland administrations whether, and if so how, these proposals could be extended to those jurisdictions.”
A Scottish Government spokesman said: “Discussions are ongoing between the UK government and the Scottish Government in relation to these proposals.”