Legal move risks corporate fallout

LORD Carloway’s proposals for the reform of the Scottish criminal justice system could have “serious unintended consequences” for businesses which are already facing new threats of prosecution, legal experts are warning.

Tom Stocker, a partner in the business crime unit at McGrigors, says that although the controversial proposals announced this week are concerned predominantly with the rights of individuals, businesses would also need to be wary of the changes should they be implemented.

He said: “Because the review has been drafted primarily with individuals in mind, it could be that there are serious unintended consequences where businesses interact with the criminal justice system.”

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Proposals put forward by the Carloway review include removing the centuries-old requirement in Scots law for corroboration, changes to police powers of arrest and detention, and their ability to continue to interview suspects following charge.

McGrigors says that businesses, particularly in the oil and gas, financial services and construction industries, are increasingly coming into contact with criminal law as a result of a “hardening enforcement environment”.

Recent laws which criminalise corporate conduct and omissions include the Corporate Manslaughter and Corporate Homicide Act 2008 and the Bribery Act 2010.

Stocker warned that the tradition of businesses offering full co-operation to investigations by the authorities may be jeopardised by the increased risk of corporate and personal criminal liability for incidents and practices that occur in the workplace.

“Businesses will need to take note of these proposed changes in deciding how they respond to criminal investigations,” he said. “They will need to ensure that key personnel are familiar with their rights.”

However, many of the proposals could make life easier for Scottish businesses that operate across the UK because they would bring Scots law more in line with practices south of the Border.