Brodies LLP

This Practice Note explains how criminal fraud is defined, investigated and prosecuted in Scotland, with some comparisons of the equivalent position in England and Wales. The principal differences are that the Fraud Act 2006 does not apply in Scotland; that in Scotland criminal fraud is predominantly a common law offence; that in Scotland only the Crown Office and Procurator Fiscal Service can bring criminal prosecutions (and not the Serious Fraud Office (SFO)), and differences as to evidential requirements.

This Checklist examines the key differences between the self-reporting initiative operated by the Crown Office and Procurator Fiscal Services in Scotland and the deferred prosecution agreement regime now operating in the rest of the UK. It briefly introduces the two regimes and covers the scope of offending behaviour under the two regimes, along with the differences in terms of judicial involvement, potential criminal consequences, the terms of the financial settlement, the speed and certainty of the arrangements and the different regulators’ approaches to engagement.