SCOTLAND risks falling behind in efforts to stamp out bribery and other corporate crime, leaving firms caught up in suspected wrongdoing more likely to deal with authorities south of the Border.
Experts from international law firm Pinsent Masons are calling for a formal memorandum to keep Scotland up to speed with the forthcoming introduction of American-style “plea bargain” agreements in England, Northern Ireland and Wales.
These deferred prosecution agreements (DPAs) come into use in March.
Aimed at encouraging firms to report themselves in the early stages of discovering potentially illegal behaviour, DPAs allow companies to avoid criminal prosecution if they adhere to strict conditions set by a judge.
These typically include substantial fines plus action to root out the possibility of future infringements.
Crucially, DPAs from the London-based Serious Fraud Office (SFO) or England’s Crown Prosecution Service also carry the possibility of a so-called “global settlement”, which would protect firms from prosecution in the United States and other countries.
Tom Stocker, a partner specialising in anti-corruption with Pinsent Masons in Edinburgh, said the global settlement arrangement is pivotal as it is a major incentive for companies to self-report.
Without it, firms face the possibility of defending the same charges in multiple jurisdictions.
“It remains insufficiently clear to businesses operating on both sides of the border whether plea bargains entered into with the SFO in London will be respected by the Scottish authorities,” Stocker said.
“Scottish companies could also be at a disadvantage to companies in England and Wales if DPAs do not extend to Scotland.”
Amid such uncertainty, there is a temptation for companies to “sweep things under the carpet”.
This can in turn lead to other corporate crimes being committed. In the case of bribery, for example, other individuals within the organisation may unwittingly commit Companies Act or money laundering offences by putting the profits from illegally-garnered contracts through the books.
While Scotland’s Crown Office does operate a process for companies to self-report in return for the chance to settle cases, this process is not backed by legislation.
As a result, only a handful of firms have self-reported north of the Border. Even so, there are currently no proposals to amend the process.
A Scottish Government spokesman said: “While we are aware of the UK government’s legislation in this area, we do not have any immediate plans to legislate for deferred prosecution agreements in Scotland. We will continue to monitor developments in England and Wales.”
Stocker said this could lead to firms bypassing the Scottish legal system in favour of reporting themselves to the SFO in the hopes of a global settlement. However, the SFO would not have to accept a case, and could refer it back to Scottish authorities.
With a number of large bribery and corruption cases under way, prosecutions are expected to gain pace during the next two years.
“Is it a significant problem? I think it is,” Stocker added.