By Neil Hay, Partner & Head of Private Crime, and Cameron Irons, Trainee Solicitor
The UK Government have shown recent determination to deliver a contemporary programme of wide-ranging reforms that are designed to tackle economic crime, improve the transparency and accountability of corporate entities and support national economic security. The Economic Crime & Corporate Transparency Act 2023 (‘the 2023 Act’) is a key piece of legislation associated with these reforms, which has important implications for large organisations.
The new offence
The offence of Failing to Prevent Fraud is committed by the organisation where an employee, agent, subsidiary or other associated person commits a fraud which is intended to benefit the organisation, and the organisation does not have reasonable fraud prevention measures in place. For the offence to be committed, it is not necessary for any of the directors or senior managers within the organisation to have known of the fraud.
The rationale behind creating such an offence is to broaden the scope of corporate criminal liability for organisations, and to increase the level of accountability in situations where employees or other associated persons are engaged in fraudulent activity that is potentially benefiting the organisation, or in certain circumstances, the clients of the organisation. As part of a wider corporate cultural shift, the new offence is designed to encourage more organisations to implement and enhance their own fraud prevention frameworks.
Which organisations does it apply to?
On 6 November 2024 the UK Home Office published guidance in relation to the criminal offence of Failure to Prevent Fraud under Section 199 of the 2023 Act. The offence applies to large, incorporated bodies such as companies and LLPs, as well as partnerships. It also applies to certain public bodies incorporated under Royal Charter. However, the offence can only be committed by “large organisations”. These are defined as organisations which meet two out of the following three criteria:
When does the offence come into force?
The offence comes into effect on 1 September 2025, which allows time for organisations to consider their current fraud prevention measures, to obtain specialist legal advice and to introduce further procedures if necessary.
What defences are there available?
If an organisation is investigated and subsequently prosecuted for the offence under Section 199 of the 2023 Act, it is a defence to the charge if the organisation can prove that at the time the fraud was committed “(a) reasonable fraud prevention measures were in place or (b) it was not reasonable in the circumstances to have prevention measures in place”.
If an organisation is prosecuted in court, the onus of proof falls upon the organisation to establish that it had in place appropriate procedures to prevent fraud, with the standard of proof being measured on the balance of probabilities.
What can we do to prepare?
Organisations will not only wish to pay particular regard to the activities of their employees but will also have to pay careful attention to arms-length individuals or entities in their organisations, including agents, subsidiaries and other associated persons. It is imperative for organisations to have comprehensive procedures in place so that in a scenario where they face criminal investigation or prosecution, they can demonstrate they have appropriate procedures in place to prevent fraud, or that none were necessary in the particular circumstances of the case.
How our specialist legal advice can help
If an organisation is facing criminal investigation and potential prosecution, a great deal of time and resources will be required to prepare a defence, and to mitigate the risks of reputational harm. Levy & McRae are well equipped to offer tailored guidance on the appropriate procedures required by organisations to demonstrate they have reasonable fraud prevention measures in place. We are also widely instructed in professional reputation management, which is often an essential service for corporate bodies during a criminal process. Any organisation facing investigation or prosecution should not hesitate in instructing specialist lawyers that can provide forensic advice, robust representation and a thorough defence. Levy & McRae have extensive experience in defending criminal charges and are well placed to support any organisation who require expertise in this area.
(This article does not constitute legal advice and is intended as general guidance only)
We were delighted to be awarded Crime Firm of the Year at the Legal 500 Scotland Awards, held last night in Edinburgh.
Neil Hay, Head of Private Crime and Partner said: “We are deeply honoured to receive the prestigious Legal 500 Criminal Law Firm of the Year. This is made all the more meaningful as it reflects the voices of our clients given the focus on client feedback.
“This recognition is a testament to the unwavering dedication, relentless hard work, and outstanding expertise of our team of dedicated lawyers and support staff.
“Every case we take is a commitment to achieving just outcomes and to the trust our clients place in us, and this award inspires us to continue setting the standard in criminal law excellence.”
A heartfelt thank you to our clients for your trust and to our outstanding team for your tireless efforts.
Our beloved former senior partner, the late Leonard Murray, features in the fascinating BBC documentary ‘Inside Barlinnie’ which was recently released and can be viewed on iplayer, link here: Inside Barlinnie . His contribution is in episode 3.
Len was the solicitor who defended Tony Miller, the last ever prisoner to be hanged in Scotland after a murder conviction. Len was a young lawyer at the time, but it is a case which he took with him to his grave. He often spoke of it and the first 3 chapters of his book ‘The Pleader’, cover the case in detail. These chapters and Len’s contribution to the programme not only give an incredible insight into the case, but clearly show the effect the case had on him. They are a reminder not only of the impact which cases had on Len (which made him the great and passionate advocate he was) but on solicitors generally.
Sadly, when the programme was still in production, Len passed away. His family asked David McKie, our current senior partner, to contribute by reading sections from the book and what the case meant to Len.
David McKie said: ‘I was very sad that I didn’t get to see Len reading his own first hand account from his excellent book. When his sons asked me to step in for their dad – my good friend and mentor, I was deeply honoured and humbled to do so. It took me back not only to the many hours I spent talking to Len about cases, to a time before I was born, albeit not that long ago in comparative terms, to a different era when absolutely everything was on the line for clients and their lawyers who carried their lives in their hands. As agents, we still carry enormous burdens of responsibility. This particular case reinforced not only Len’s deep passion for his work but the impact solicitors and advocates feel every day when representing clients, whether accused of serious crimes or in any situation where their liberty, reputation or financial standing is at stake.’
We are delighted to announce that our firm has been awarded impressive rankings in the latest Legal 500 2025 edition. This recognition is a testament to our dedication, hard work, and the outstanding expertise of our team.
We have been ranked this year for:
In criminal law we are now the only Tier One firm in Scotland. It is also particularly pleasing to see that in each of the three areas where we are ranked, we also achieve the ‘client satisfaction’ benchmark.
Our lawyers Senior Partner David McKie , Neil Hay, Callum Anderson, Andrew Seggie, Paul Anderson, Hannah Baxter, Elizabeth Rose, Nadine Montgomery Allam and Suzanne Williams were all named in the new rankings, which shows the breadth of talent that our firm possesses.
David McKie commented: ‘I would like to congratulate not only those named this week as recognised leaders in their field, but our whole team of highly skilled and committed lawyers who play a vital role in maintaining our high standards in all areas of litigation. I also want to mark the equally valued contribution of our property and private client teams who play a vital role in maintaining our high standards and reputation among our clients and the profession.’
We are incredibly proud of these achievements and grateful to our clients, partners, and colleagues for their continued support. These accolades drive us to keep delivering exceptional service and results for those who place their trust in us.”
We are delighted to share some exciting news with our clients, colleagues, and friends. Our law firm has been shortlisted in an impressive seven categories at the forthcoming Legal 500 Scotland Law Awards. This prestigious recognition underscores our commitment to excellence, dedication to our clients, and the hard work of our talented team.
Each nomination reflects our unwavering commitment to providing exceptional legal services and achieving the best possible outcomes for our clients.
We extend our heartfelt thanks to our clients, partners, and colleagues for their ongoing support and trust.
On Friday of last week two senior lawyers from our Private Crime department attended the prestigious Fraud Lawyers Association conference in London. This full-day event, hosted by A&O Sherman in the heart of the city, gathered numerous legal professionals specialising in fraud and financial cases.
The conference boasted a stellar lineup of speakers, including the Director of the Serious Fraud Office, Judges, representatives from the US Department of Justice, and leading solicitors and barristers. The event provided a platform for discussing the latest trends, challenges, and strategies in defending fraud and financial cases.
Our Attendees:
Our lawyers were among the select few representing Scotland at this event, showcasing our firm’s commitment to staying at the forefront of legal developments and ensuring robust defence strategies for our clients.
Levy &McRae remains dedicated to continuous learning and professional development. Attending such high calibre events allows us to maintain our excellence in legal defence, particularly in complex fraud and financial cases.
For more information about our services and expertise in fraud defence, please contact Head of Private Crime, Neil Hay.
As a direct result of our continuous growth and our success in attracting new clients, we are restructuring our Criminal Law Department to provide a more streamlined service for our clients.
In our commitment to providing top-tier legal representation, we have established two new senior positions with Callum Anderson becoming Head of Regulatory Crime and Neil Hay becoming Head of Private Crime. These roles have been created to refine our focus and leverage our extensive expertise in these key areas of criminal law.
The Head of Regulatory Crime will lead for the firm on all professional and regulatory crime, including looking after a number of representative bodies and organisations, as well as overseeing the defence of Health and Safety and regulatory prosecutions, Public Inquiries and Fatal Accident Inquiries.
The Head of Private Crime will lead for the firm in all major areas of criminal law and in financial and white-collar crime for professional, high-profile, high net worth and corporate clients.
Both positions will be filled by highly experienced Solicitor-Advocates from within our ranks, ensuring that our promise of meticulous case preparation and superior court advocacy continues to stand. These seasoned professionals bring a wealth of knowledge and a robust track record of successful outcomes, maintaining our reputation as “The Lawyer’s Lawyers.”
David McKie, senior partner, said: “This restructure enriches the support and advocacy we provide to our clients, ensuring ever more focused and effective representation.
“We value the trust our clients place in us and are dedicated to continuing our work with integrity, confidentiality, and compassion. These changes are designed to reinforce our capability to advocate for your rights and deliver justice, from sheriff courts to the High Court of Justiciary and all forums where regulatory matters are determined.
As always, our team is here for you from the moment of instruction. Contact us for advice, action, and advocacy.
Callum Anderson 07779 622654; canderson@lemac.co.uk
Neil Hay 07866 734524; nhay@lemac.co.uk
We are proud to announce that our Criminal Law Partner Neil Hay has again been featured among the top legal advisers in the 2024 SpearsIndex, a Spears Magazine annual listing of the lawyers working in criminal and white collar crime for high new worth and ultra high net worth clients.
Neil is the only Scottish Criminal lawyer listed by this prestigious directory, and his recognition follows upon him being awarded Crime Lawyer of the Year in the inaugural Legal 500 Scotland Awards last year.
Neil commented: “I am pleased that our professionalism and expertise in Scottish criminal law matters has again been recognised, in particular around the work we do for high net worth individuals where discretion and strategy are so important”.
Neil`s full profile in the 2024 SpearsIndex can be read here: https://www.spears500.com/adviser/12891/neil-hay
Scottish Paralegal Association Glasgow Conference 2024
Neil Hay , Partner at Levy & McRae was delighted to take part in the Glasgow 2024 Scottish Paralegal Association conference last week. Neil spoke to delegates about the new legislation The Hate Crime and Public Order (Scotland) Act 2021.
Neil said “It was a pleasure to take part in this busy conference on the topic of the new Hate Crime legislation. This is an area of law which has been of great interest to the public and everyone in the legal sector. Overall the conference was a tremendous success. Congratulations to the organising Committee and many thanks for the kind invite to participate.”
Levy & McRae are delighted to sponsor what promises to be a fascinating talk in Grand Hall of The Merchants House of Glasgow this coming Friday 19th April.
The speaker is the incomparable Donald Findlay KC, who is going to speak about the notorious case of Oscar Slater (1872 – 1948), the victim of a notorious miscarriage of justice in Scotland. Wrongly convicted of murder and sentenced to death, Slater was freed after almost two decades of hard labour. His release came about through the efforts of several journalists, lawyers and writers, including Sir Arthur Conan Doyle.
Senior partner, David McKie, said:
‘Although the legal landscape has changed and the death penalty thankfully no longer applies, we still see miscarriages of justice, and this case, although a century old, will highlight the importance of lawyers, campaigners and journalists in the fight to ensure justice is secured, something Levy & McRae have been involved in for many decades and which continues to run through our DNA. The talk is likely to be poignant for many connected our firm, having only recently lost our former senior partner, Len Murray, who represented Anthony Miller in the last ever capital murder trial in Scotland in 1960.
We are very proud to support this event in a wonderful venue and look forward to hearing from such a unique advocate and flamboyant speaker.’
