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.
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
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.
Our firm reaffirmed its standing as a leader in Scottish criminal law as two of our partners delivered presentations at the annual CLT Criminal Law Conference in Glasgow yesterday. This event brought together leading professionals to discuss key developments over the last 12 months in criminal law in Scotland.
Our Senior Partner, David McKie provided the conference with an overview on Countryside and Wildlife Laws, an area of Scots Law where he is a leading expert. His talk covered the Wildlife and Countryside Act and how that UK statute differs so markedly in Scotland from England; the Animal Health and Welfare (Scotland) Act and the extended powers of the Scottish SPCA; and firearms law which is very heavily regulated.
Neil Hay, Partner and Head of Private Crime had the privilege of hosting the conference, ensuring a structured and engaging platform for discussion and debate on criminal law issues. Neil also delivered a talk on “Dealing with Hearsay in Criminal Trials”, detailing what hearsay evidence is and why it is generally inadmissible, together with how to object to hearsay evidence. Neil also covered the common law and statutory exceptions to the hearsay rule and provided guidance on when hearsay can be used in criminal trials.
Both partners and other expert speakers addressed a wide range of pertinent topics, underscoring the ever-changing nature of Scottish criminal law and the complexities practitioners must navigate.
Levy & McRae remains dedicated to maintaining its position at the forefront of legal developments, ensuring that our clients benefit from sophisticated, informed representation. Our active participation in high-profile industry events such as this underscores our commitment to excellence, thought leadership, and the ongoing evolution of the Scottish legal sector.
We are delighted to welcome Laurelle Johnstone to our Criminal Law team. With experience in both prosecution and defence, Laurelle brings valuable insight and practical knowledge to our Department.
Laurelle initially gained criminal law experience as a defence solicitor in private practice, appearing in courts throughout Scotland. In the last four years Laurelle has served as a Procurator Fiscal Depute, prosecuting a vast amount of cases at both summary and solemn level. Through working with the solemn team, Laurelle has developed significant knowledge of the law in relation to sexual offence cases.
“We are very pleased to have Laurelle join our team,” said Neil Hay, Partner and Head of Private Crime. “Laurelle`s background in both prosecution and defence enhances our ability to serve our clients effectively.”
As our Criminal Law department continues to grow, we remain committed to building a team of highly skilled professionals who uphold our dedication to legal excellence.
We are proud to announce that Neil Hay, our Partner and Head of Private Crime has once again been featured in the prestigious 2025 Spear`s 500 Index, an annual listing by Spear`s Magazine that highlights the top lawyers in criminal and white-collar crime serving high net worth and ultra-high net worth clients. Neil`s full listing can be viewed here: Neil Hay Spear`s 500 Index listing.
This recognition follows upon the recent succes of the firm being named Crime Firm of the Year at the Legal 500 Scotland Awards.
Neil remains the only Scottish criminal lawyer to be included in this directory, solidifying his reputation for excellence and leadership in the field.
Commenting on the recognition, he said:
“It is a privilege to be recognised again for our work in criminal law, particularly in such a highly regarded directory. Our focus on providing strategic and discreet representation for high net worth individuals remains at the heart of everything we do, and it’s gratifying to see that commitment acknowledged.”
This achievement underscores our unwavering commitment to providing excellent legal representation to clients who require the utmost in skill, discretion, and strategic advice and representation.
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.’
