Brodies LLP
14 Experts
10 Contributions by Brodies LLP Experts
PRACTICE NOTES
Temporary justice measures:
Temporary measures remain in force across Scotland’s justice system, which may affect the usual practice set out in this Practice Note and its guidance. For further detail, see Coronavirus (COVID-19)—Scotland tracker [Archived]—Corporate Crime in Scotland.
Practitioners will recognise the former concepts of ‘detention’ and ‘arrest’ under the Criminal Procedure (Scotland) Act 1995 (CP(S)A 1995). Insofar as relevant to this Practice Note, the pertinent CP(S)A 1995 provisions—covering police questioning and access to a solicitor—were repealed by the Criminal Justice (Scotland) Act 2016 (CJ(S)A 2016), and superseded.
The 2016 Act replaced ‘detention’ and ‘arrest’ with a single, unitary concept of ‘arrest’ and set out provisions for police custody, the rights of arrested persons, police powers, police questioning, and release from police custody, accordingly. It also introduced the status of ‘officially accused’ persons recognised in the legislation, as set out in statute
Corporate Crime
PRACTICE NOTES
Criminal fraud in Scotland
How criminal fraud is defined, investigated and prosecuted (and by whom) differs across the UK. In Scotland, the majority of prosecutions rely on the broad, catch‑all common law offence of fraud, though the common law offences of uttering and embezzlement may apply to specific facts and circumstances. See below—Common law fraud: general, and Embezzlement and uttering.
There are also various statutory offences that contain elements of criminal fraud. Some originate in legislation that is specific to Scotland, while others derive from UK‑wide enactments. Importantly, neither the Fraud Act 2006 (FrA 2006) nor the Theft Act 1968 (TA 1968) applies in Scotland. However, TA 1968, s 14 allows that Act to extend to the commission in Scotland of certain acts involving theft of mail bags or postal packets.
There are further differences between Scotland and England and Wales in how criminal fraud is
Corporate Crime
PRACTICE NOTES
Practice Note
This Practice Note outlines the principal environmental offences in Scotland across water, pollution, waste, public health and conservation. For each offence, it sets out any available statutory defences and the maximum penalties that may apply. For more detailed guidance on the types of sentences available for environmental offences, and on the approach taken by the Scottish courts when sentencing such cases, see Practice Note: Sentencing environmental offences in Scotland. The Environmental Authorisations (Scotland) Amendment Regulations 2025, SSI 2025/165, commenced generally on 1 November 2025, with certain provisions beginning on 1 June 2025. That instrument repealed the Water Environment (Controlled Activities) (Scotland) Regulations 2011, SSI 2011/209, and the Pollution Prevention and Control (Scotland) Regulations 2012, SSI 2012/360. Offences previously contained in those regimes are now consolidated within the Environmental Authorisations (Scotland) Regulations 2018 (EASR 2018), SSI 2018/219, principally under regulation 69. Further
Corporate Crime
PRACTICE NOTES
This Practice Note sets out the purpose and scope of . For guidance on the comparable process in England and Wales for unexpected deaths, known as coroners’ inquests, see Practice Note: The purpose and scope of coroners' inquests.
Reporting of deaths and the Scottish Fatalities Investigations Unit
Following a death in Scotland, burial or cremation cannot proceed until a medical certificate stating the cause of death has been issued. This document—known as the Medical Certificate of the Cause of Death (MCCD or Form 11)—must be completed by a doctor and set out the time, date, place and cause of death, identifying any conditions directly leading to the death and any antecedent conditions.
Some deaths must be notified to the Procurator Fiscal. A ‘reportable death’ is one not wholly attributable to natural causes, or one potentially due in whole or in part to natural causes but arising in
Corporate Crime
PRACTICE NOTES
Consumer protection legislation applies to businesses generally and to the regulated financial services sector
This Practice Note explores the obligations on firms authorised by the Financial Conduct Authority (FCA) under the Financial Services and Markets Act 2000 (FSMA 2000) (herein referred to as ‘firms’) to comply with a central element of consumer protection law, the Consumer Rights Act 2015 (CRA 2015), together with its predecessor, the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 (UTCCRs). In addition to these statutory duties, firms must follow the FCA’s regulatory rules and take account of guidance relevant to unfair contract terms.
Under the CRA 2015, the FCA may challenge firms regarding the fairness and/or transparency of contractual terms and notices in financial services consumer contracts (whether in standard form or individually negotiated) entered into from 1 October 2015.
Under the UTCCRs, the FCA may
Financial Services
PRACTICE NOTES
This Practice Note explores keep open clauses in Scottish commercial leases. It explains what a keep open clause is and why parties may wish to include one in their lease; identifies key points for a solicitor when drafting; and outlines the remedies a landlord may seek where a tenant breaches the clause. It also briefly contrasts the enforcement approaches in Scotland and England, and notes the factors considered by the Scottish courts during enforcement. The Practice Note does not address the legal position outwith Scotland, other than short commentary on the difference in the English and Scottish court’s approach to enforcing keep open clauses. Accordingly, it does not cover drafting issues for English solicitors or the English common law. User restrictions and matters relating to change of use provisions are likewise excluded.
Keep open clauses-the basics
Common law
Property
PRACTICE NOTES
There are three categories of suspect who might be interviewed:
an individual not under arrest about whom a police officer has reasonable grounds to suspect has committed, or is committing, an offence. A constable may ask that person certain questions
suspects held in police custody. The protections for those questioned while in custody are set out in the Criminal Justice (Scotland) Act 2016 (CJ(S)A 2016)
a person who attends a police station or other location voluntarily to be questioned as a suspect. Where Police Scotland, or a regulatory body with powers to question, believes a corporate crime has been, or is being, committed, they will often invite an individual to attend for voluntary suspect questioning
Powers to question different types of suspect
Section 13 powers
Section 13 of the Criminal Procedure (Scotland) Act 1995 (CP(S)A 1995) gives a constable authority to put
Corporate Crime
PRACTICE NOTES
This Practice Note outlines the legal powers to search premises and property during a criminal inquiry in Scotland. It further considers the scope for challenging search warrants in Scottish criminal investigations. For guidance on obtaining warrants issued by the criminal courts in England and Wales, see the following Practice Notes: Obtaining and executing a search warrant under PACE 1984; Obtaining excluded material and special procedure material under PACE 1984; Search of premises; and Seizure and retention of property.
The principal powers to search premises and property in Scotland fall into these categories:
under the terms of an arrest warrant
by consent
where urgency dictates
under the authority of a search warrant
Search under the terms of an arrest warrant
Where the Crown decides to bring proceedings on either summary complaint or petition, the terms of the complaint or petition itself will grant
Corporate Crime
PRACTICE NOTES
The Scottish Environment Protection Agency (SEPA) is Scotland’s lead environmental regulator, broadly mirroring the functions of the Environment Agency (EA) in England and Natural Resources Wales in Wales.
For information on the enforcement powers of environmental regulators in England and Wales, consult these Practice Notes:
Environment Agency—powers to investigate environmental crime
Environment Agency (EA)—powers of entry
Natural Resources Wales—powers to investigate environmental crime
Local authorities—powers to investigate environmental crime
Natural England—powers to investigate environmental crime
For details of key environmental offences in Scotland, see Practice Note: Key environmental offences in Scotland, and for the approach to sentencing, see Practice Note: Sentencing environmental offences in Scotland.
SEPA's role and policy
Established under the Environment Act 1995 (EA 1995) to protect and enhance the environment, SEPA regulates activities that may pollute water or air; the storage, transport, treatment or disposal of waste; the
Corporate Crime
CHECKLISTS
STOP PRESS
This Practice Note is being revised to incorporate the new guidance from the Crown Office and Procurator Fiscal Service (COPFS) - Self report policy: guidance to businesses reporting economic crime offences - under which businesses may now self‑report a range of economic crime offences. There are significant differences between the self‑reporting initiative operated by COPFS in Scotland and the deferred prosecution agreement (DPA) regime running in the rest of the UK. Any business that discovers corruption within the organisation should ensure it understands these distinctions before deciding which authority to contact. This Checklist sets out the main differences between the Scottish self‑reporting initiative and the DPA regime applied elsewhere in the UK.
Introduction to the two regimes
Scottish self-reporting initiative
The Scottish self‑reporting initiative was launched on 1 July 2011 when the Bribery Act 2010 (BA 2010), a UK‑wide statute, took effect. The Scottish
Corporate Crime
If you expected to see yourself on this page, click here.
