Regulatory enforcement: differences between Scotland and England

All businesses are subject to regulatory regimes, where what they must and must not do is often enforced through the criminal law. The law is usually similar throughout the UK, but the way in which regulatory laws are enforced in Scotland differs from the rest of the UK.

This guide shows some of the main ways in which the enforcement process differs in Scotland compared to England and Wales.

Responsibilities

England and Wales: responsibility for regulatory requirements lies with the applicable regulator – for example the Health and Safety Executive or the Environment Agency. The regulator deals with all stages of an enforcement action including investigation, issuing enforcement notices, deciding whether to prosecute the alleged offender in court and going through with the prosecution.

Scotland: regulators investigate regulatory breaches and issue enforcement notices but do not have the power to prosecute. The regulator must submit a report to the Crown Office and Procurator Fiscal Service (COPFS), who decides whether or not to prosecute an offence.  The COPFS has a division dedicated to investigating work related accidents/fatalities.  The Division is led by specialist prosecutors with experience prosecuting offences under health and safety laws.

The interview process

England and Wales: a witness may be interviewed on a voluntary basis, or on a compulsory basis under a statutory power given to a regulator. Where a 'compulsory' interview is being carried out, people being interviewed are provided with some protection in that the information they provide may not be used against them in subsequent criminal proceedings – although it may be used against others, including the witness's employer.

Where a person is suspected of an offence they must be interviewed 'under caution', as required by the Police and Criminal Evidence Act (PACE), or the evidence may be inadmissible in court. The caution warns the person being interviewed that anything he says may be used as evidence in court. It also warns that anything the interviewee fails to mention which he later seeks to rely on in court may be used against him.

Companies are often invited to nominate a director or other person to attend an interview under caution to speak on behalf of the company. Alternatively, companies may be asked questions in writing under caution. There is guidance from the Law Society of England and Wales which states that solicitors for a company should not attend interviews of employees.

Scotland: a witness may be interviewed either voluntarily or on a compulsory basis.

PACE does not apply in Scotland. However where someone who is suspected of an offence is being questioned, a caution should be administered before a suspect is questioned as a matter of fairness. A failure to do so may make the answers inadmissible in court. The authorities commonly administer cautions to individuals following regulatory breaches.

In Scotland an adverse inference cannot be drawn from the suspect's failure to answer any question put to him. The person being interviewed is only required to provide his name and address.

In serious cases the COPFS may summon a witness to provide a form of statement called a 'precognition' for the purposes of assisting with their investigation. The witness is not entitled to be legally represented at an interview with the COPFS, and a precognition cannot subsequently be used in court.

Companies are not usually interviewed under caution or asked questions in writing under caution. No guidance on the attendance by a solicitor for the company at interviews of employees has been issued by the Law Society of Scotland.

Witness statements

A witness statement is a document recording the evidence a person gives during a voluntary interview.

England and Wales: providing a witness statement is a very important part of the criminal process in England. One type of witness statement is a 'section 9' statement, which is a voluntary statement taken from a witness under the Criminal Justice Act. The statement will then be signed by the witness to confirm that the contents of the statement are true.

The witness statement can subsequently act as that person's evidence in court proceedings, although a defendant can insist on the witness attending to be cross-examined on his evidence in court.

Because of the evidential value of a witness statement given voluntarily, regulators prefer to interview witnesses on a voluntary basis and will resist having to use any powers to take a statement on a compulsory basis.

Scotland: witness statements are not usually treated as providing a person's evidence in court proceedings. There are a few limited exceptions to this rule - for example, where the witness has died or cannot be found, or where the witness is outside the UK and it is not reasonably practical for him to attend court proceedings. In addition, if a witness changes his evidence a witness statement can be used to demonstrate that the witness has previously provided a different version of events.

Because witness statements are of little evidential value, regulators are more open to using their powers to conduct compulsory interviews.

Formal cautions

Regulators have the power to issue formal cautions instead of prosecuting. A formal caution is a statement by a regulator that the duty holder has committed an offence for which there is a realistic prospect of conviction. The duty holder must accept the statement in writing or risk being prosecuted.

Formal cautions are not issued in Scotland.

Prosecutions

England and Wales: regulatory offences are tried either by 'summary trial' in the Magistrates' Court or by 'trial on indictment' in the Crown Court. Almost all cases start in the Magistrates' Court.

In the Magistrates' Court, the maximum fines are usually restricted. In the Crown Court, the maximum fines are usually unlimited.

Where an accused has been charged with an 'either way' offence, which can be tried in either the Magistrates' Court or the Crown Court, he must first appear at a 'mode of trial' hearing in the Magistrates' Court where the Magistrates will decide where the case will be heard depending on the seriousness of the alleged offence. The accused also has a right to elect for the case to be heard in the Crown Court in front of a jury.

Cases can be transferred from the Magistrates' Court to the Crown Court for sentencing.

Only barristers and solicitor-advocates are allowed to appear in the Crown Court.

Scotland: regulatory offences are tried either by 'summary procedure' or 'solemn procedure'. The COPFS will decide which procedure should be followed.

Summary procedure is where a case is heard in the District Court or the Sheriff Court, without a jury. The maximum fines are usually restricted. Solemn procedure is where the case is heard by a judge sitting with a jury in either the Sheriff Court or the High Court of Justiciary. Most serious regulatory breaches which proceed on solemn procedure will be heard in the Sheriff Court in front of a jury. The maximum fines are usually unlimited.

A case on summary procedure cannot be transferred to a higher court for the purpose of sentencing, and an accused does not have the right to elect to be tried in front of a jury.

Solicitors have the right to appear in all courts except the High Court of Justiciary.

Unlike the position in England and Wales, the prosecution is not entitled to recover the costs of the investigation and an accused person who is acquitted is also unable to recover costs

Charges against the accused

England and Wales: the charges are generally set out in a short and simple manner and are normally accompanied by a separate summary of the case alleged against the accused.

Scotland: all the particulars of the offence must be set out in the charges. This means that there is more scope to challenge the charges at the preliminary stages.

Evidence

England and Wales: an offence can be proved from evidence from a single source, with a few limited exceptions.

Scotland: no case can be proved unless there is evidence from more than one source as to the essential elements of the offence. This is often referred to as 'corroboration'.