Self report policy: guidance to businesses reporting economic crime offences

1. This guidance sets out details of the policy operated by the Crown Office and Procurator Fiscal Service (“COPFS”) for businesses to “self-report” a range of economic crime offences.
2. The self-report initiative was originally introduced by the then Lord Advocate in July 2011 to mark the commencement of the Bribery Act 2010, and at that time it extended only to bribery offences. The initiative has been reviewed on an annual basis since then, and it is considered to have achieved its aims of encouraging good corporate governance and creating a corporate culture in which bribery is not hidden.
3. More recently, in response to developments in the law and the evolving nature of economic crime, the Lord Advocate has approved an extension to the categories of offences which may be self-reported, to include other types of economic crime.
4. Under the new policy, from 1 September 2025, businesses (meaning bodies corporate including limited liability partnerships, and partnerships) will be able to report to COPFS conduct within their organisations which may constitute one or more of the following offences in respect of the business, with a view to consideration being given by COPFS to refraining from prosecuting the business, and instead referring the case to the Civil Recovery Unit (“CRU”) for civil settlement:
   •    Contravention of section 7 of the Bribery Act 2010 (failure of commercial organisation to prevent bribery);
   •    Contravention of section 45 or section 46 of the Criminal Finances Act 2017 (failure to prevent facilitation of tax evasion);
   •    Contravention of section 199 of the Economic Crime and Corporate Transparency Act 2023 (failure to prevent fraud);
   •    Contravention of section 196 of the Economic Crime and Corporate Transparency Act 2023 (offence committed by the attribution to the business of a “relevant offence” committed by a senior manager of the business, acting within the actual or apparent scope of their authority),  insofar only as it relates to an offence listed in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 or 17 of Schedule 12 to the 2023 Act.
5. The expanded self-report policy will remain in place until further notice, without the need for it to be formally reviewed and extended on an annual basis.

6. COPFS will consider a report relating to conduct which would be an offence under the legislative provisions outlined above or, if the conduct in question occurred prior to the applicable legislation coming into force, conduct which would constitute an offence under the law in force at the relevant time.
7. COPFS is the sole public prosecutor in Scotland and considers all reports of alleged criminality in Scotland. The policy outlined herein is distinct from the Deferred Prosecution Agreement scheme operated by the Serious Fraud Office (“SFO”) and the Crown Prosecution Service (“CPS”) in England and Wales. There are arrangements in place for liaison between COPFS and the SFO or CPS about self-reported cases where appropriate. If the SFO or CPS is presented with a report from a business which clearly relates to conduct in, or predominantly in, Scotland, they will refer the business to COPFS. The same will apply in reverse where COPFS receives a report which appears to disclose circumstances more appropriately dealt with by the SFO or CPS. In some cases which raise cross- border issues there may require to be discussion between the SFO or CPS and COPFS as to which organisation will deal with the case. This will be a matter to be decided by the relevant organisations.  
8. Where there are cross-border issues, each case will have to be considered individually. As a guide, examples of factors that suggest a business should report to COPFS in the first instance are where the business has its headquarters or registered office in Scotland; or where the business predominantly carries on its business in Scotland; or, most importantly, where the wrongdoing that the business has identified has taken place in, or mostly in, Scotland.

9.    In order to participate, businesses will require to submit a report via a solicitor to the Serious and Organised Crime Unit (“SOCU”) of COPFS. This guidance note sets out in detail how such reports should be made and how they will be dealt with both by SOCU and, if appropriate, by CRU.

10.    A report under this policy should be made to SOCU by a solicitor acting on behalf of the business. Minimum requirements for acceptance of a report will be that the business:
•    has conducted a thorough investigation of the circumstances, which should include an assessment by forensic accountants. The business must be willing to share any resulting report with SOCU and must acknowledge that the report is being provided to SOCU on its behalf;
•    agrees to disclose to SOCU the full extent of criminal conduct which has been discovered;
•    describes what has been done to prevent a repetition of this conduct in the business; and
•    is committed to meaningful dialogue with SOCU in their assessment of the case and in any investigation.

11.    SOCU staff will be willing to have early discussions with the solicitors of any business considering making a report, to discuss the content of any report and to provide an early indication of whether or not such a report would be accepted. In some cases it will be appropriate for CRU staff to be involved in discussions at this early stage and when a report has been received by SOCU, so that there can be consideration of issues such as how long CRU estimate it would take to complete their work on the case, whether a further independent forensic accountant requires to be engaged, and whether CRU are content with the level of benefit to the business which has been calculated by or on behalf of the business. There may be some cases where SOCU will advise that it would be more appropriate for the business to refer the matter to a regulator rather than to COPFS. While SOCU staff will be prepared to provide information about how cases will be dealt with, they will not enter into discussions with solicitors who wish to discuss a possible report in a particular case without disclosing the identity of their client. Information, including the initial report, which is provided to SOCU will be recorded. It will be treated in confidence but may be used by COPFS (or by law enforcement on behalf of COPFS) in any subsequent criminal investigation and prosecution, or in any civil recovery investigation. In cross-border cases where a decision is made that the SFO or CPS have jurisdiction, or where prosecution or law enforcement agencies in other jurisdictions request assistance for their investigations, COPFS reserves the right to share this information with them.

12.    The business must be clear that the report is made on behalf of the Board, where the business is a company, or on behalf of the Partners, where the business is a partnership; and that the business has received legal advice before making the report or disclosing any information to COPFS. The business will be asked to acknowledge that the information it provides to COPFS, including any report on its investigation of the matter and any other documentation, may be used by COPFS as indicated above. Reports will only be accepted from businesses and not from individuals. If any individual wishes to make a report without the knowledge of the business for which they work, they will be directed to the appropriate law enforcement agency who will investigate outwith the terms of this policy.

13.    In evaluating a self-report, SOCU will have regard to the general principles set out in the COPFS Prosecution Code. The evidential test will not apply to decisions regarding self-reports but the public interest will be a key consideration and the factors outlined in the COPFS Prosecution Code may be considered as part of the assessment of the public interest.

14.    SOCU will have regard to the following criteria when determining whether a self-reported case should be passed to CRU with a view to reaching a civil settlement:
•    the nature and seriousness of the offence and the extent of the harm caused including not just the monetary value of any gain or loss but also the risk of harm and any wider impact;
•    the extent of the wrongdoing and culpability within the business, including whether conduct was authorised by, or connived in, by senior management, or restricted to a small number of lower-ranking individuals;
•    whether it is clear that the business has taken action as soon as the matter came to the attention of senior management (as opposed to taking no action until it becomes aware that there is a risk that the conduct is going to come to light);
•    whether the business (or the individuals involved in the matter reported) has any previous record for this type of conduct. This would go beyond a previous criminal conviction, and would include any civil or regulatory enforcement action or warning;
•    whether the individuals involved in the wrongdoing have left the business and, where decisions were taken at Board or partner level, whether there is a new Board or new partners in place, and in both cases the timing and reasons for the departure of these individuals;
•    whether the business has honoured its commitment to engage and cooperate with COPFS meaningfully and in particular to disclose the full extent of the wrongdoing;
•    for offences in terms of section 7 of the Bribery Act 2010, sections 45 or 46 of the Criminal Finances Act 2017, or section 199 of the Economic Crime and Corporate Transparency Act 2023, whether the business had adequate systems and compliance processes in place to prevent offending at the time of the criminal conduct and whether it has further addressed this following the conduct;
•    for offences in terms of section 196 of the Economic Crime and Corporate Transparency Act 2023, the level of seniority of the manager, and the extent to which the senior manager was acting within the actual or apparent scope of their authority, as granted by the business;
•    whether the business has taken remedial action in response to the wrongdoing and put in place appropriate measures to prevent a reoccurrence;
•    whether there are particular considerations which may weigh against prosecution, such as the consequences of prosecution for the business’s employees and stakeholders.

15.    Every case will be considered on its own merits. There may be self-reported cases where it is in the public interest to refer the case to CRU with a view to a civil settlement being agreed. However, it is anticipated that there may be cases where, taking into account all the criteria and all representations made on behalf of the business, the public interest considerations in reaching a civil settlement with a business which self-reports and demonstrates that it has taken remedial action, will be outweighed by other factors (principally where the offending is sufficiently serious for there to be an overriding public interest in a prosecution). Such a case would be deemed inappropriate for referral to CRU and would be passed to law enforcement for criminal investigation, with direction and guidance from SOCU. In these cases, it is envisaged that the business will continue to cooperate with law enforcement. Law enforcement will report such cases to SOCU to consider prosecution and any ancillary restraint and confiscation proceedings. The business will be able to rely on their self-reporting and co-operation with COPFS and law enforcement as significant mitigating factors to be taken into account by the Court in the event of conviction.

16.    It is likely that in some cases a self-reporting business will want to reach an arrangement both in relation to how it will be dealt with and how former or current officers or employees of the business will be dealt with. The preliminary evaluation by SOCU will take this into consideration. It may be that it will not be in the public interest to allow a business to self-report and reach a civil settlement but prosecute individuals connected to the business, though there may be exceptions to this. No guarantees can be given about how individuals are to be dealt with.

17.    Specialist staff within SOCU will make an initial evaluation of the report within 12 weeks of receipt. SOCU may ask law enforcement agencies to provide advice and information about what has been disclosed and may seek more information from the business about the circumstances. Informal contact may be made with CRU at this stage to discuss whether a referral would be possible. If SOCU consider that the case can be most appropriately dealt with by referral to CRU, a report will be prepared for Crown Counsel who will be asked to approve such a referral.

18.    If a decision is made to refer a case to CRU intimation of this will be given to the solicitor for the business. It will be agreed that neither SOCU, CRU nor the business will make any public comment about the case at this stage, beyond an acknowledgment that the case is being considered as part of the self-report policy.

19.    Any case referred to CRU will be investigated under the civil recovery provisions of the Proceeds of Crime Act 2002 (POCA). An investigation will be instigated, with the involvement of a third-party forensic accountancy firm (“the forensic accountants”), who will be paid for by the self-reporting business. The letter of engagement with the forensic accountants will reflect this arrangement. It is anticipated that professional conflicts may exist which will prevent some firms being appointed as the forensic accountants in certain cases. A forensic accountancy firm which has carried out an initial investigation for a business might have a conflict of interest such as would prevent its appointment depending on the terms under which it was instructed and other services being provided by the firm to the business.

20.    The forensic accountants will examine the business’s initial investigation to understand the scope and accuracy of the conclusions which have been reached by the business. In this phase there will be consideration of the quality of the business’s investigation and the level of additional investigation that may be required.

21.    The forensic accountants will report their findings to CRU and provide recommendations as to further work that should be carried out. This will verify the initial report and provide comfort that the business has reported all offences and the extent of the wrongdoing within their organisation. The extent of the work thereafter carried out by the forensic accountants will be instructed by CRU and will be explained to the business.

22.    The forensic accountants will make regular reports to CRU outlining the level of compliance of the company. Any serious breaches of compliance by the business, for example failure to allow the forensic accountants access to accounting records, will result in the case being returned to SOCU. The forensic accountants will also advise CRU should they uncover further criminality that was not part of the initial self-reporting by the business. On receipt of this information the CRU will return the case to SOCU. Such cases will only be re-referred to CRU for completion of the civil recovery investigation if SOCU are satisfied there is good reason not to begin a criminal investigation in the circumstances.

23.    The forensic accountants will provide a report outlining their findings in relation to the reported conduct and any other conduct uncovered during their investigation. CRU will use this information to quantify the appropriate level of a settlement by reference to the benefit which has been obtained by the business through unlawful conduct. CRU forensic accountants will consider quantum and other accounting aspects, and CRU solicitors will assess the reported conduct and the benefits to the business as a result of that conduct.

24.    Following a decision by CRU that it will conclude a settlement, CRU will notify SOCU of that decision in advance of concluding the settlement. SOCU will then refer the matter to Crown Counsel again, for a final decision on whether or not there will be a prosecution of the business for the conduct that has been reported. If Crown Counsel instruct that there will be no prosecution, SOCU will issue a letter confirming that there will be no prosecution of the business for the conduct reported, subject to full implementation of the settlement. The letter from SOCU will generally be delivered to the business contemporaneously with the execution of the Joint Minute with CRU. 

25.    Publicity will follow any settlement unless a compelling reason for confidentiality exists.

26.    There may be circumstances, in cases where the business has submitted a forensic accountancy report as part of their self-report, in which CRU take the view that the requirement to instruct a third party forensic accountancy firm can be dispensed with. This will be determined on a case by case basis and will be the subject of discussions with the business For example, where the business’s initial investigation (including forensic accountancy work) is limited and would not enable  a full assessment to be undertaken of the reported conduct and the benefit accrued as a result of that unlawful conduct, then CRU reserves the right to request that the business instruct a fuller forensic accounting investigation by third party forensic accountants paid for by the self-reporting business. In the event a third party forensic accountant requires to be appointed, it is anticipated that forensic accountants will be appointed in accordance with Scottish Government procurement policy.  As previously stated, the forensic accountant’s fees will be paid directly by the self-reporting business during the investigation. The business will pay the forensic accountants’ invoices within an agreed timescale. Failure to do so may result in their case being returned to SOCU for further consideration of criminal investigation. The costs incurred by the business in respect of instructing third party forensic accountants at the request of CRU may be taken into account when determining the appropriate level of any extra-judicial settlement but there should be no expectation by the business that these costs will be taken into account in every case.

27.    A solicitor wishing to find out more about the self-report policy or to hold a preliminary discussion about a case should contact the COPFS Serious and Organised Crime Unit by email at: pa_pfspecialistcasework@copfs.gov.uk

28.    A solicitor wishing to make a report should write to: 
Laura Buchan
Deputy Crown Agent, Specialist Casework 
Crown Office and Procurator Fiscal Service
25 Chambers Street
Edinburgh
EH1 1LA