Other than in health and safety cases, corporate prosecutions are relatively uncommon in Scotland. The main reason for this is that common law crimes tend to require proof of a mental element, such as intention. Establishing the state of mind of an individual is one thing, but what do such concepts mean when dealing with a corporation?
In Scotland, as in England, the law looks at the 'directing mind' – the state of mind of those responsible for the company. That can be a very complex task. The Transco case – a prosecution of a utility company for causing deaths in a gas explosion – amply illustrated the point.
As a general rule, it will only be possible to demonstrate the necessary mental element for a company where the same can be demonstrated for one or more individual directors; in that case, it is often easier for the Crown just to prosecute them. That being said, there may still be a particular reason to include the company on an indictment.
There are some signs that corporate prosecutions may become more common in Scotland. Some recent pieces of legislation, such as the Bribery Act 2010, have sought to focus on corporate conduct and governance. A lack of appropriate policies, training and safeguards could lead to companies and their directors facing prosecution. So far these provisions have tended to produce self-reports and negotiated settlements, with only a handful of cases being investigated for prosecution. Whether that will continue remains to be seen.
It is much more common for companies to face police or prosecutorial investigations, often involving the execution of search warrants. Directors will be anxious to cooperate and abide by the terms of a court order; yet they will be concerned about the reputational and management implications, to say nothing of duties of confidentiality and concerns around data protection / GDPR.
That situation is one that calls out for swift and effective legal advice. Our criminal defence lawyers have acted for several companies in just this situation. Issues which have arisen in the past include:
In such cases, there may be grounds to bring an urgent application before the court (known in Scotland as a bill of suspension) to have the warrant reviewed. There have been several recent instances of the court recalling (cancelling) warrants which are found to have been defective. Even where a formal legal challenge is not brought, difficulties can sometimes be sorted out through meaningful discussion with the authorities.
It can come as a particular surprise for companies based in England to be visited by Scottish officers, executing a warrant granted in Scotland. Scottish warrants are enforceable in England (and vice versa) where the warrant has been endorsed by a local court. While the primary challenge to any such warrant would be brought in the jurisdiction where it was granted, there can sometimes be a basis also to challenge the endorsation.
These are all difficult issues that benefit from practical, specialist advice. Livingstone Brown is ideally placed to assist companies in such situations. Get in touch with us on 0141 429 8166 or complete our online enquiry form.
Livingstone Brown is a leading firm of Scottish solicitors. Based in Glasgow, but dealing with cases around the country, the firm has been at the forefront of legal service provision for over thirty years.
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