Proceeds of Crime: Confiscation Orders, Crime Doesn’t Pay
The Scottish legal system operates with a number of core principles. One of the most important is the concept that crime should not result in financial gain. This article by our Criminal Defence Senior Associate Ross McGowan considers the principles and practicalities of Confiscation Orders in Scottish Courts.
After a person is convicted of a crime that they have financially benefitted from, the Crown can ask the Court to make a Confiscation Order under the Proceeds of Crime Act 2002. This is the route by which the criminal justice system seeks to remove financial gain from offending.
While there are also civil recovery processes under the Proceeds of Crime Act that do not require a conviction, this article focuses solely on criminal Confiscation Orders following from conviction.
What is a Confiscation Order?
It is important to understand that a Confiscation Order is not seen as a punishment. It is seen as a financial recovery mechanism to prevent criminals from profiteering from their criminal conduct. The order will usually coincide with punishment.
A Confiscation Order is not an automatic process. There requires to be a conviction and the Crown must ask the Court to grant confiscation. The process is commenced by the serving of a statement of information.
The statement of information will outline the criminal lifestyle or particular criminal conduct that a person is said to have as well as two crucial figures; the benefit amount and the available amount. The benefit amount will be an assessment of how much the individual is said to have gained through offending. The available amount will be the value of the person’s assets at the time of the confiscation proceedings. The amount that the Court will be asked to confiscate will be the lower of the benefit amount and the available amount. The law permits reviewing the preceding six years in criminal lifestyle cases.
What is the benefit amount?
The benefit amount is expressed as a figure but will encompass any property or assets seized. In criminal lifestyle cases may include assets such as houses, cryptocurrency or illegitimate sources including drugs. In relation to specific conduct cases, it will usually be the direct benefit. For example, in criminal lifestyle cases the prosecutor can call into question all assets purchased over the previous six years. That is commonplace particularly following convictions for drug dealing. Alternatively in specific criminal conduct cases, if a person obtained £100,000 through a fraudulent scheme, that would be the benefit amount even if the money is no longer in the person’s possession.
What is the available amount?
The available amount reflects the figure that the amount the person has that can be paid towards a Confiscation Order. It will include any and all realisable property such as cash, houses, vehicles and other realisable assets. It may, crucially, take into account assets owned jointly or transferred to others, particularly if done to thwart confiscation proceedings. Certain obligations can be removed from the available amount (e.g. outstanding mortgages). The available amount may be the assets seized by the Crown at the point of arrest, those subject to a restraint order or moratorium or entirely unrestrained assets.
What happens if the benefit amount exceeds the available amount?
Whilst the Confiscation Order will be for the lower of the available amount and the benefit amount, that is not to say that if your benefit outweighed the available amount, you would escape the clutches of the proceeds of crime proceedings having benefitted from your crime. The benefit amount is recorded within the Confiscation Order and it would be open to the Crown to seek an increase in the enforcement of the order to the benefit amount. That can occur if further assets come to light or the individual’s assets increase.
What happens if there is a dispute?
If matters are disputed, the Court is likely to assign a proof to hear evidence on the issues before making a determination. The burden of proof rests on the individual to disprove matters advanced by the statement of information on the balance of probabilities.
Payment and consequences of non-payment
The Court will assign a deadline for payment to be made. A default on that deadline can result in a period of imprisonment being imposed and enforcement measures may continue beyond that. The Court may impose interest until the debt is satisfied.
Why specialist advice matters
Confiscation proceedings are one of the most complex and technical areas of criminal law. Confiscation orders can have far reaching consequences meaning that early specialist advice can be crucial in protecting yourself and your assets.
There are various matters that can be challenged including the calculation of the relevant figures, whether there is a criminal lifestyle, asset valuations and third-party interests.
We have a wealth of experience in assisting clients that find themselves facing confiscation proceedings. If you find yourself in such a position, contact us for confidential advice. Early intervention can make a significant difference to the outcome.
Senior Associate Ross McGowan
Few expressions in criminal justice attract as much scrutiny as this one, and in recent days it has moved to the centre of controversial public debate. In the wake of widespread reporting on former First Minister Nicola Sturgeon’s police interview, two words have been dissected, criticised, and, in many quarters, plainly misunderstood.
It is, then, an apt moment to move beyond the noise and examine what “no comment” really means, and why it remains so significant in Scots criminal law.
In public discourse, those words are rarely treated as neutral. They are often framed as evasive, strategic, even incriminating. They invite speculation and narrative. In a political context, they quickly become the subject of commentary that says more about perception than law.
But step inside a Scottish police interview room, and the meaning of those two words changes entirely.
A “no comment” interview is neither unusual nor exceptional. It is not, in legal terms, a tactic designed to frustrate the process. It is the routine exercise of a core right, engaged at a critical stage: before charge, often before full disclosure, and always within a setting controlled by the police.
To better understand that one should move away from the headlines and return to what actually happens at the outset of the interview.
The beginning: what the police actually say
Before any questions are asked in a Scottish police station, the interview begins in a structured way that defines the legal framework for everything that follows.
The officer will introduce themselves, confirm who is present, and ensure the interview is being recorded. What follows is the formal setting of the legal stage.
They will often begin in these terms:
“Before beginning this interview… I must remind you of certain information. Please listen carefully.”
The suspect is then told:
“You are under no obligation to say anything other than to provide your name, date of birth, place of birth, nationality and address.”
That reflects the requirement under section 31 of the Criminal Justice (Scotland) Act 2016 that a person is informed they are under no obligation to answer questions beyond basic identifying details.
The officer then reinforces the framework of rights:
“While you are in police custody you have the right to a private consultation with a solicitor at any time…You have the right to have a solicitor present while being interviewed by police.”
The suspect is reminded they may request breaks, seek further legal advice, or indicate if they do not understand a question.
Only then does the interview turn to the moment that arguably matters most – the common law caution:
“I am now going to ask you questions about [the offence]. You are not obliged to answer any questions, but anything you do say may be noted, may be recorded, and may be used as evidence. Do you understand that?”
Only when that is confirmed does questioning begin.
Why that wording matters
Those words are deliberate and precise. They establish three essential propositions: the suspect does not have to speak; anything said will be recorded and used; and the decision rests with them.
Just as important is what is not said.
There is no warning that silence may harm a defence. There is no suggestion that failure to answer will carry consequences. That omission is deliberate. It reflects a legal system in which silence remains protected.
Crucially, a “no comment” interview is not defiance or obstruction. It is a direct and repeated answer, given after the suspect has been told, clearly, that they are entitled not to respond.
The officer may ask. The suspect may answer. Or they may choose not to do so.
How the interview unfolds in practice
The structured beginning does not detract from the intensity of the questioning that may follow.
Police interviews are very structured, and the questions are routinely prepared well in advance. In HMA v Hawkins, [2017] HCJAC 79, evidence demonstrated that officers prepared and followed a plan for questioning. The interview proceeded in stages, including what was described as an “impact” phase, during which the tone became firmer, and the allegation was put directly.
In Hawkins, more than 200 questions were asked on the allegation, and the accused was repeatedly invited to reconsider his position of answering “no comment”, which he eventually did.
The court ultimately excluded what he said, with Lady Scott stating:
“It should be obvious to the police that to seek to undermine a solicitor’s advice to a suspect is wholly improper…I have concluded the repeated and prolonged questioning here… combined with repeated suggestions he should re-consider his exercise of that right constituted undue pressure.”
The principle is therefore clear. Questioning may be robust, but it may not be coercive. Where pressure, particularly where it undermines legal advice, crosses that line, the consequence may be that the evidence is not used.
A different approach from England
The Scottish position becomes clearer when set alongside that of England and Wales. South of the border, the standard caution includes an additional warning:
“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court…”
That single line reflects a statutory regime, principally sections 34 to 37 of the Criminal Justice and Public Order Act 1994, which allows adverse inferences to be drawn from silence.
Scotland has not adopted that approach. A Scottish court cannot invite a jury to conclude that a defence is fabricated simply because it was not disclosed in interview, nor can silence be used to supply proof. That reflects a deliberate choice to preserve the principle that the burden rests entirely with the Crown.
In Scotland, there is no adverse inference from silence in interview. The accused is under no obligation to assist the Crown, and what is sometimes characterised as a tactic is simply the exercise of a right.
Legal advice: timing and protection
The right to silence is rarely exercised in isolation.
Since the landmark case of Cadder v HM Advocate, [2010] UKSC 43, access to legal advice before questioning has been recognised as essential to fairness. Cadder concerned an accused who was detained and interviewed without access to a solicitor, and whose admissions were subsequently relied upon by the Crown at trial. The Supreme Court allowed the appeal, holding that the lack of access to a solicitor before police questioning breached the accused’s right to a fair trial under Article 6 of the ECHR, and ruled that the use of those admissions rendered the conviction unsafe.
In Condron v United Kingdom, (2001) 31 EHRR 1, the European Court of Human Rights reaffirmed that the right to silence and the privilege against self-incrimination lie “at the heart of the notion of a fair procedure”, and made clear that where silence is exercised on legal advice, that position must be properly taken into account in assessing fairness.
That very much matters in practice. A suspect may be asked to respond to an evidential case they only partially understand. Disclosure may be limited. The risks of speaking, of giving an incomplete or inconsistent account, are immediate and irreversible.
Advice to answer “no comment” is therefore not disengagement. It is often the only way to preserve position until the evidential picture becomes clear.
Beyond the headlines
From the outside, particularly in the glare of political commentary, “no comment” is easily turned into something it is not.
Inside the interview room, it is a clear and deliberate exercise of a right, invoked at the point where the individual faces the full authority of the state, often without sight of the evidence said to exist against them.
The courts have been consistent. Silence is not suspicion. It cannot be used to fill gaps in the Crown case, and it does not alter where the burden of proof lies.
What may be portrayed publicly as strategy is, legally speaking, something much simpler. It is a protection afforded to every suspect, regardless of the allegation or indeed the suspect’s status and profile.
A police interview in Scotland is not a demand for answers, but a legal process in which the individual retains the choice whether to provide them. And whatever is made of that choice beyond the interview room, the protections afforded by the law remain unequivocal.
Solicitor (Private Crime)
07849 641462
Early, strategic advice at the outset of a criminal investigation is often critical, particularly where the issues extend beyond the legal position into questions of reputation, professional standing and personal impact. In situations marked by uncertainty and risk, a careful, client focused approach delivered with discretion is essential. Levy and McRae’s specialist private crime team draws on more than 140 years of experience, and is trusted by police officers, other solicitors and a wide range of regulated professionals, including foster carers, as well as high profile and high net worth individuals, to navigate the most sensitive and challenging cases. The focus is always on measured, strategic advice at the earliest stage, with a clear emphasis on protecting reputation and guiding clients through some of the most difficult circumstances they will face.
It is becoming increasingly common for couples in Scotland to choose to live together rather than to marry. This article by our Senior Solicitor Olivia Robertson considers what rights cohabiting couples have, and what they can do to best protect themselves if the relationship breaks down.
Cohabitants
Before we get onto cohabitation agreements, we should start by explaining what a cohabitant is.
The Family Law (Scotland) Act 2006 defines a cohabitant as “either member of a couple consisting of (a) a man and a woman who are (or were) living together as if they were husband and wife; or (b) two persons of the same sex who are (or were) living together as if they were civil partners”. There are lots of factors to take into account but, in short, cohabitants are couples who are in a committed, intimate relationship and live under the same roof.
The law recognises this set up to an extent, but if a cohabiting couple were to separate, they would not have the same legal rights as if they were married.
Cohabitation Claims
The law presumes that each cohabitant has a right to an equal share in household goods acquired during the period of cohabitation. For example, furniture, ornaments and household decorations should normally be split equally if a cohabiting couple were to separate. Money, securities, vehicles and pets are specifically excluded from that presumption.
The law makes the same presumption in relation to money derived from any allowance made by either cohabitant for their joint household expenses (or for similar domestic purposes), or any property purchased with that money.
If a cohabiting couple separates, they do not have any automatic rights. However, the 2006 Act allows a cohabitant to make a claim for financial provision against the other.
In deciding whether to grant the application, the court will consider if the applicant cohabitant has made contributions which have economically disadvantaged them, while economically advantaging the other cohabitant or a child of the relationship. That could be, for example, one cohabitant paying a significantly larger portion of the deposit to purchase the family home.
The court will then carry out an off-setting exercise to consider whether any economic advantage is balanced out by any economic disadvantage and vice versa. For example, one cohabitant may have funded the general household expenses and been economically disadvantaged, but the other cohabitant may have given up work to care for a child of the relationship and has therefore also been economically disadvantaged.
There is no set criteria and every case will be determined on its own unique circumstances.
Cohabiting couples should note that there is a strict one-year time limit to raise such a claim. It is very important to take legal advice at the earliest opportunity following separation.
Left to the courts, a cohabitant cannot be certain what they will be entitled to, if anything at all. Pursuing a cohabitation claim through the courts is also likely to be expensive, time consuming, and probably quite stressful.
So, what else can you do?
Cohabitation Agreements
Couples can enter into cohabitation agreements.
Done properly, a cohabitation agreement is a legally binding contract between the couple that sets out what should happen if they separate. You can think of it like a “pre-nup” but for couples who are not getting married.
Whether you are buying a property together, taking on a joint tenancy, or one of you is moving in with the other, a cohabitation agreement can set out clear expectations both during the relationship and if it comes to an end.
You and your partner can dictate what should happen to the house and its contents, how childcare should operate, and how any other assets such as savings should be divided in the event that you separate. Taking the time to do this at the outset of your “cohabitation” could save time, money and heartache in the long run. You can also cover how household expenses, such as general running costs and repairs, should be met during the cohabitation.
If you, or a loved one, is considering a cohabitation agreement, we recommend that you take independent legal advice at the earliest opportunity. We understand that these conversations can be difficult and may even feel pessimistic. Our Family Law specialists will provide compassionate and discreet advice, tailored to meet your needs.
If you would like to discuss a cohabitation agreement, please contact our office on 0141 307 2311 and ask to speak to a member of our Family Law Team.
The Scottish Parliament’s decision to reject the Assisted Dying for Terminally Ill Adults (Scotland) Bill marked a significant moment in the long running debate over assisted dying. Following a deeply impassioned debate on Tuesday 17 March 2026, the Bill was defeated by 69 votes to 57, with one abstention.
Liam McArthur’s Bill underwent detailed committee scrutiny and faced extensive amendment in response to concerns around vulnerability, prognosis, and medical safeguards. Its rejection therefore carries particular weight. This was not an early rejection in principle. This difficult decision was reached after sustained scrutiny and the conscious judgement of individual parliamentarians not to change the law.
As a result of this historic decision, assisted dying in Scotland continues to fall within the framework of the existing law. That outcome reinforces the importance of understanding how Scots criminal law, in particular, approaches conduct connected with another person’s death.
Criminal law framework in Scotland
Unlike England and Wales, where assisting suicide is a specific statutory offence under section 2(1) of the Suicide Act 1961, Scotland has no equivalent statutory offence framed in those terms. This is sometimes mischaracterised as a gap in the law, but one might argue that it reflects a deliberate structural feature of Scots criminal law.
Scots law does not criminalise “assistance” as such. Instead, it asks whether an individual’s conduct can properly be characterised as causing the death of another person, with the requisite degree of culpability. Liability therefore arises, if at all, through the general law of homicide, namely murder or culpable homicide, rather than through a discrete offence of assisted suicide.
While suicide itself is not criminal in Scotland, third party involvement may attract criminal liability where conduct can be said to be the immediate and direct cause of another person’s death. The absence of a statutory scheme authorising assisted dying means there is no regulated or protected framework within which such assistance can lawfully be provided.
Causation and responsibility
Criminal liability in this context does not turn solely on who performs the final act. Scots criminal law focuses on causation, rather than factors such as physical proximity, presence, or the formality of the involvement. A person need not administer medication or be present at the moment of death for their conduct to raise questions of criminal responsibility. What matters is whether that conduct can properly be said to have caused, accelerated, or materially contributed to the death.
This point becomes clear when considering situations often discussed in the wider assisted‑dying debate. For example, whether a person who accompanies a loved one to Dignitas in Switzerland, a jurisdiction in which assisted dying is lawful, incurs criminal liability in Scotland will depend entirely on whether their actions can be characterised as an immediate and direct cause of the death. Simply accompanying someone, or assisting with travel arrangements, may fall short of establishing the requisite causal connection, even where the ultimate act of ending life was foreseeable. However, this assessment is always highly fact‑specific. The decisive question is not foreseeability alone, but whether the individual’s conduct can properly be said to have materially contributed to the death in law.
Questions of causation in analogous contexts have been considered by the High Court of Justiciary in cases involving the supply or administration of lethal substances. In MacAngus v HM Advocate and Kane v HM Advocate (2009 JC 203, [2009] HCJAC 8), the court emphasised that causation is a fact‑sensitive inquiry, and that a deliberate decision by an adult to ingest a substance does not necessarily break the chain of causation. Much depends on the nature and extent of the involvement.
In Ross v Lord Advocate [2016] CSIH 12, Lord Carloway observed that where an adult with full capacity freely and voluntarily consumes a drug with the intention of ending their life, voluntary ingestion will normally, though not invariably, break the causal chain. Again, the precise allocation of responsibility remains a matter of fact and circumstance in each case.
Taken together, these authorities reflect a broader principle of Scots criminal law: it is not concerned with “assistance” in the abstract, but with whether conduct meets the legal requirements of homicide. Causation remains a detailed, case‑by‑case inquiry, turning on contribution, intention, and materiality rather than on proximity, presence, or the emotional role of the individuals involved.
Prosecutorial discretion
Questions have been raised as to whether offence-specific prosecution guidance should be developed to provide greater clarity in cases involving assisted dying. Those questions may well re-emerge in the wake of this Bill.
In Ross, the petitioner sought judicial review of the Lord Advocate’s refusal to publish guidance identifying the factors that would be considered when deciding whether to prosecute conduct connected with assisted suicide in Scotland. The Inner House rejected the challenge, holding that existing Scots criminal law, together with the general prosecution policy framework, provided sufficient legal certainty for the purposes of Article 8 of the European Convention on Human Rights.
Ross was not a substantive criminal law case. It did not define the scope of criminal liability, nor did it create any protected category of assistance. Rather, it confirmed that decisions in this area continue to be governed by established principles applied through prosecutorial discretion.
Academic commentary has observed that while Ross did not clarify the substantive scope of the criminal law, it nonetheless illustrates why offence-specific guidance equivalent to that issued by the Director of Public Prosecutions in England and Wales has not been adopted in Scotland. In a system where liability arises only if conduct can properly be characterised as homicide, guidance directed at assisting suicide risks implying a legal category that Scots law does not recognise – at least not yet.
Compassion, motivation and liability
Motivation may be relevant to the exercise of prosecutorial discretion, but it does not displace the core question of causation. Compassion, however genuine, does not remove criminal liability where the legal threshold is met.
Where an individual intentionally ends another person’s life, a charge of murder or culpable homicide may arise depending on the presence of wicked intent or reckless conduct. Assertions that particular forms of assistance, such as indirect support or facilitation, will not attract criminal liability cannot be stated categorically in Scots law. The central question remains whether the conduct in issue can properly be said to have caused, accelerated, or materially contributed to death.
Vulnerability and end-of-life decisions
Questions about vulnerability and coercion were central to the recent parliamentary debate and are relevant to understanding the criminal law position.
Coercion need not be explicit. Subtle pressure, emotional dependence, or a perceived sense of burden may all shape decisions at the end of life. Scots criminal law can scrutinise these influences, and where they are present, the conduct of those involved may attract close examination. In the absence of statutory authorisation, there remains no protected legal space for third party involvement in another person’s death.
The law does, however, draw distinctions between deliberate acts causing death and clinically justified end-of-life decisions. It has been recognised, in the context of assessing homicide, that medically justified withdrawal of life support may involve no criminal responsibility.
Elsewhere in the U.K.
The Scottish position must also be understood in its wider U.K. context. In England and Wales, assisting suicide remains a specific statutory offence under section 2(1) of the Suicide Act 1961, punishable by up to fourteen years’ imprisonment. At the same time, assisted dying is the subject of active legislative debate south of the border, with the Terminally Ill Adults (End of Life) Bill having progressed through the House of Commons but now stalled at committee stage in the House of Lords.
In R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, the House of Lords required the Director of Public Prosecutions to promulgate offence specific guidance identifying factors relevant to decisions about prosecution in assisted suicide cases, in order to satisfy Article 8’s requirement that interferences be in accordance with the law.
In Scotland, no equivalent guidance has been produced by the Crown Office and Procurator Fiscal Service. Decisions here continue to be governed by the general prosecution policy framework and the application of established principles of Scots criminal law.
Conclusion
The rejection of the Assisted Dying for Terminally Ill Adults (Scotland) Bill does not end the debate. It does, however, reaffirm an existing legal position. In Scotland, assisted dying remains a matter for criminal law rather than regulation. Until Parliament decides otherwise, involvement in another person’s death will continue to be assessed through established principles of causation, culpability, intention, and responsibility.
These issues are not confined to academic debate. They surface at some of the most difficult points in people’s lives, when individuals and families are already confronting loss, uncertainty, and the limits of medical care. Looking ahead, any renewed discussion of legislative reform or prosecutorial guidance will need to be approached with care, humility, and a clear understanding of the human realities at stake. As Scotland considers future options, ensuring a framework that promotes clarity, compassion, and dignity will be essential.
Solicitor
0141 307 1064
We, as the firm representing numerous patients affected by the actions of former neurosurgeon Sam Eljamel at the ongoing Public Inquiry and in their claims for compensation, today strongly welcome the decision by NHS Tayside to remove the legal time limit for his victims seeking to pursue personal injury compensation claims.
This decision abolishes the three-year statutory time bar that previously prevented many patients from taking legal action as the time limit had expired since their treatment. This move acknowledges the devastating and complex circumstances faced by victims, many of whom were initially unaware that their life-altering injuries were the result of negligent treatment.
The decision by NHS Tayside means all former patients of Mr. Eljamel now have a full three-year period, starting immediately, in which to initiate legal proceedings against the health board. This time frame is applicable regardless of the original date of their surgery.
Suzanne Williams, Legal Director said : “This is a momentous victory for our clients, earned through their prolonged and courageous campaign. This action by NHS Tayside finally guarantees that justice and accountability are accessible to everyone harmed by Mr. Eljamel’s practice or those he supervised. We urge all affected patients to immediately seek comprehensive legal advice on their individual cases.”
If you have been affected by medical negligence as a result of the actions of Sam Eljamel or NHS Tayside and wish advice, please contact our specialist team on 0141 307 2311 or email us at eljamelenquiries@lemac.co.uk
We were pleased to have two representatives of the firm serve as judges at the 10th anniversary of the Lord Jones Inter‑Varsity Moot Competition, hosted by Dundee University Law School and sponsored by Thorntons. Competitors from seven Scottish universities delivered submissions in a demanding medical negligence appeal addressing issues of informed consent, professional standards, and systems liability before an Inner House‑style bench.
Nadine Montgomery, medical negligence solicitor and pursuer in the landmark UK Supreme Court case that reshaped the law on informed consent, joined Cameron Irons, criminal defence solicitor and Past President of Dundee University Law School, in judging the preliminary rounds.
The final, presided over by Lord Weir, brought together outstanding teams from the University of Strathclyde and the hosting institution, Dundee University. After an impressive and closely argued moot, Dundee emerged as the winners, securing the Lord Jones Trophy.
As Scotland’s largest mooting competition, the event honours the legacy of Lord Michael Jones, who championed opportunities for students to develop and refine their advocacy skills.
As a specialist litigation firm, Levy & McRae are always proud to support the next generation of Scottish lawyers and to contribute to competitions that demonstrate the enduring value of skilled legal advocacy.
Significant reforms to the structure of criminal verdicts and jury decision‑making will come into force in Scotland on 1 January 2026, marking one of the most consequential procedural changes in the modern era of Scots criminal law. These reforms arise from the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, and represent the first stage of its implementation.
End of the Not Proven Verdict
From 1 January 2026, Scottish juries will no longer have the option of returning a not proven verdict. Only guilty and not guilty will remain available. This change applies to:
The removal of not proven represents the culmination of years of public debate about the verdict’s fairness, clarity and effect. Many have argued that not proven often created confusion for complainers, accused persons, and the public. Supporters maintained it provided a valuable safeguard against wrongful conviction in borderline cases. The statutory abolition reflects a policy decision to simplify jury outcomes and align Scottish verdict structures more closely with those in other jurisdictions.
New Two‑Thirds Jury Majority Requirement
Alongside the verdict reform, the threshold for establishing guilt will change. There are 15 members of a jury, whereas in England there are 12. Currently, Scotland allows a simple majority of jurors to convict in solemn cases (8 out 12 jurors). From 01 January 2026, a two‑thirds majority will be required for a guilty verdict. This means that in a 15‑person jury, at least 10 jurors must support guilt before a conviction is possible.
As with the abolition of not proven, this new rule applies only to cases where the indictment has not yet been read to the jury before the implementation date.
This represents a significant shift in Scottish criminal procedure. The higher majority seeks to counterbalance the simplified verdict structure, ensuring that removing not proven does not lower the overall threshold required to convict. The impact of these reforms very much remains to be seen.
A Phased Implementation of Wider Reforms
While the verdict and majority changes are the first provisions to take effect under the 2025 Act, further reforms, some of which will have a profound impact on practice in sensitive and complex cases, will follow later. These include:
Both reforms will require new rules of court and accompanying developments in legal aid regulation, meaning their commencement is some distance away.
The Practical Implications
For criminal defence solicitors, the Crown, and the Judiciary, the 2026 reforms will require careful adjustment in case strategy, trial preparation and client advice. Key implications include:
Case Preparation and Evidential Assessment
With not proven no longer an intermediate option, trial strategies may shift. Defence teams lose a long‑standing mechanism through which juries or sheriffs could express residual doubt without fully exonerating. Prosecutors may need to assess evidential sufficiency and jury persuasion in the context of a higher conviction threshold.
Jury Dynamics and Deliberations
Requiring a two‑thirds majority increases the importance of secure, coherent and comprehensible evidential presentation. It also alters the dynamics of jury deliberation, likely making consensus‑building more demanding.
Managing Client Expectations
Both accused persons and complainers often struggle with the meaning of not proven. Although the reform simplifies messaging, practitioners must be prepared to explain the new rules, particularly in legacy cases straddling the implementation date.
Transitional Complexity
Because the applicability of the reforms depends on procedural stage, indictment reading for solemn cases, first witness for summary trials, careful attention to timelines will be essential in advising clients and planning litigation.
The abolition of the not proven verdict and the introduction of a two‑thirds majority requirement represent landmark changes in Scottish criminal justice. Effective from 1 January 2026, they signal the Scottish Government’s intention to modernise jury procedure and reshape the balance between simplicity, fairness and evidential robustness.
With further reforms on the horizon, Scotland’s criminal justice landscape will continue evolving. Criminal practitioners should familiarise themselves with the forthcoming rules and review ongoing cases to determine how the transitional provisions may apply.
If you have any questions or concerns about navigating the complexities of the criminal justice process, including the new reforms to the law, we recommend you seek specialist advice at the earliest opportunity, be you a complainer in a criminal case or someone who is facing prosecution.
Levy & McRae Solicitors are Scotland’s foremost criminal defence practice, best known for providing discreet, specialist representation to high profile and high net worth individuals, regulated professionals, police officers and corporate bodies. For over 140 years the firm have taken great pride in delivering a boutique service, litigating some of the most complex and consequential cases in Scottish legal history. Over several decades we have also developed expertise in particularly niche areas, including financial crime, corporate and regulatory investigations, firearm-related offences, health and safety law and wildlife crime.
To get in touch with our team please contact 0141 307 2311 or email us on info@lemac.co.uk
Cameron Irons
0141 307 1064
On 17th November, the UK Supreme Court (UKSC) issued its decision in the conjoined appeals of Keir and Daly v His Majesty’s Advocate ([2025] UKSC 38).
Over recent years, the defence have been faced by an ever-restrictive regime whereby evidence and lines of inquiry have been dismissed as collateral or prohibited by the “rape shield” provisions. The UKSC’s decision provides the potential to revisit how cases with sexual allegations are conducted. In particular, the Court was concerned with whether this current practice was compatible with the accused’s right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR).
Though the appeals were refused due to both accused being deemed to have received fair trials, in a judgment that is of considerable importance to Scottish practice, the UKSC held that the current approach of the High Court is liable to lead to unfairness and, as a result, will require modification.
In light of the concerns expressed by the Supreme Court, it will be for the Scottish Courts to reconsider their approach to sensitive evidence in criminal trials. And trial judges will likely have an enhanced role in considering whether the relevance and admissibility of any proposed evidence.
This could also have profound implications for cases currently being prepared for trial, trials currently in progress, and for those convicted of sexual offences, who may now take steps to appeal their convictions. At Levy & McRae we work tirelessly to ensure that we are at the forefront of legal developments to ensure that we consider all angles of such cases.
We’re delighted to announce that the Law Society of Scotland has awarded our Solicitor Nadine Montgomery Allam Trauma Awareness Certification.
For Nadine, whose landmark Supreme Court case reshaped the legal definition of informed consent in the UK, this certification formalises a commitment that has always been central to her work: delivering legal care that recognises the emotional impact of medical harm.
At Levy & McRae and L&M MediLaw, we’re building a trauma-informed practice, where:
🔹 Clients are treated with dignity, not legal jargon
🔹 Staff are trained to listen as well as act
🔹 We create space for safe, client-led conversations
Learn more about our approach and Nadine’s certification: Why Trauma Awareness Matters in Medical Negligence Law
We’re heading to Chicago!
Our Senior Partner David McKie is thrilled to be attending the Legal Netlink Alliance Global Meeting this June 18–21, 2025 — and this year’s gathering promises to be something truly special.
We’ve been proud members of LNA for 25 years, and over that time we’ve had the pleasure of closely collaborating with many member firms across the globe.
David McKie said “I am looking forward to representing the firm at the conference later this month to discuss and compare common issues which face the legal profession across the globe. This event takes place 25 years since the first conference L&M attended and we look forward to celebrating our continued collaboration with our LNA partners at the home of one of the founder members.”
LNA has been more than just a network to us — it’s been a community that brings together incredible legal minds from around the world. Whether it’s through knowledge sharing, cross-border referrals, thought leadership, or friendships built through in-person meetings, the value we get from this alliance is immeasurable.
The Global Meeting is one of the highlights of our calendar — and this year, it’s happening in Chicago, hosted by Aronberg Goldgehn, one of LNA’s founding firms. We’re looking forward to thought-provoking discussions, reconnecting with colleagues, meeting new faces, and shaping the future of legal practice together.
