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.
We are delighted to once again feature in The Times “Best Law Firms 2025” list, published today.
This recognition reflects the dedication of our team and the trust our clients place in us. We take pride in our work and remain committed to providing thoughtful, effective legal solutions to those we serve.
The Times states: “The firm often handles complex criminal cases related to domestic violence, sexual offences, embezzlement, money laundering, fraud and other white-collar issues. Clients include high-net-worth individuals and prominent figures from the worlds of media, politics and sport, as well as leading professionals and organisations. Another area of expertise is regulatory crime. The firm provides advice on topics such as education, health and housing, safety, transport and wildlife”.
Full details here: https://lnkd.in/eEjySQYY
This acknowledgment encourages us to keep striving for excellence in every case we undertake.
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.’
As a firm, Levy & McRae is very saddened to hear of the loss of Alex Salmond.
David McKie, senior partner of the firm, said: “Alex was a true giant of the political world both in Scotland and across the UK. He was unquestionably one of the leading politicians of his generation. He was widely respected across all political viewpoints. He had a unique ability to connect with the person in the street right up to heads of state and royalty. It comes as no surprise to read the many testimonials which followed his untimely death.
“Our involvement with Alex came after his tenure as First Minister and at a difficult time in his life and career.
“While we helped to navigate Alex through three legal processes (judicial review, a trial and the subsequent parliamentary inquiry), the real driving force in all of those processes was Alex himself. He very quickly grasped the legal issues involved and fought hard to ensure that justice was done.
“Alex’s courage and strength of character over the three-year period, from the Scottish Government launching an unlawful process against him, throughout his criminal trial in which he was cleared on all charges by a jury of his peers, to his unimpeachable evidence in the Parliamentary Inquiry, was absolutely incredible.
“What he endured – the apparatus of the state turning against him – would have broken many people, but not Alex.
“He remained utterly determined to see justice done, but showed no bitterness or anger towards his accusers or to the many others who jumped on the bandwagon to condemn him, even before any evidence had been produced or presented.
“Instead, he simply focussed on the evidence and understood, unlike many commentators at the time, the importance of the due process of law. While some individuals, for whatever reasons, remained critical and sceptical (even after his legal victories, all of which were grounded on the evidence), his friends and his true supporters, as well as those who respect the rule and process of law, recognised and respected his complete vindication.
“I will always remember a truly incredible human being, with remarkable insight, strength of personality and a stoic restraint which many others could not contemplate. I cannot fail to mention either his kindness, loyalty, his ability with people and, remarkably, the wonderful sense of humour he managed to show throughout and despite his tribulations.
“My thoughts go out to Moira and to his very close friends and associates whom I had the privilege of getting to know through an otherwise horrendous period in Alex’s life. While there are still some injustices to be resolved, I hope Alex could rest in the knowledge that he was unequivocally vindicated and that he retained the love and respect of those who most mattered to him.’
Callum Anderson, Head of Regulatory Crime, who co-led the criminal defence team in the firm, said: “Working with Alex was a unique and inspiring experience. He exemplified resolve, forensic focus and a strategic understanding which are normally the preserve of only very experienced lawyers.
“I stood next to Alex when he was first arrested and charged and was at his side when he gave a truly unforgettable speech on the day of his acquittal. That day coincided with the start of lockdown and, despite Alex having been overwhelmingly cleared, his focus was instead on those suffering the impact of the pandemic. That was the mark of the man’.
We recently attended a pivotal meeting in Dundee regarding the Eljamel Inquiry, marking a significant step forward in pursuing justice for affected patients.
Led by Inquiry Chair Lord Robert Weir and senior counsel Jamie Dawson KC, the inquiry aims to ensure that the voices of former patients are central to its proceedings. A virtual event took place on Thursday, October 10, 2024, allowing those who couldn’t attend the in-person meeting to engage and share their views.
We have shared Draft Terms of Reference and we encourage all stakeholders to provide their input before the October 25, 2024 submission deadline. You can submit your views directly to the Inquiry Team via the online response form or email at legal@eljamelinquiry.scot.
Your experiences and views matter. For more information, visit Draft Terms of Reference.
If you need assistance, our team at L&M Medilaw is here to support you. Feel free to reach out by phone or email.
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 pleased to share that one of our trainee solicitors, Cameron Irons, has been appointed as a new committee member to the Trainee and Newly Qualified Society (TANQ), which is run by the Royal Faculty of Procurators in Glasgow.
Cameron works across our criminal and commercial litigation teams, and he will now assist the Royal Faculty and the TANQ society committee in arranging and hosting educational seminars, networking events and social gatherings for young legal professionals across the region.
He said: “I am pleased to be appointed as a committee member of TANQ. This will be a unique opportunity to represent young lawyers and contribute to building a collegiate network for colleagues to connect and build on their professional development.”
The Royal Faculty of Procurators was incorporated prior to 1668 and continues to serve the needs of the legal profession in Glasgow and west central Scotland. It provides members with access to a large law library with significant holdings, a well-regarded CPD education programme, the services of an auditor, and a venue in the city centre for a wide variety of events. The Royal Faculty of Procurators also acts as a representative body for solicitors practicing in the Glasgow area.
David McKie, senior partner of Levy and McRae, said: “We are pleased to see Cameron join the RFPG TANQ Society as a newly appointed committee member. We hope his involvement will bolster our firm’s longstanding relations with the RFPG and further increase engagement with younger lawyers across the legal profession.”
You can email the TANQ committee on tanq@rfpg.org or by visiting the RFPG website at https://www.rfpg.org/
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.
