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Courts should be able to order independent reports into an organisation's financial health if they are found to have committed an offence, before setting a fine.
The proposal - the second part of SNP MSP Bill Wilson's efforts to enhance corporate accountability alongside his member's bill to introduce a system of Equity Fines - has been put forward in an amendment to the Criminal Justice bill currently going through the Scottish Parliament.
Dr Wilson is hopeful the proposal will win unanimous backing from the Parliament's Justice Committee and the support of the Scottish Government.
The amendment will mean judges no longer have to base fines on evidence presented by the responsible organisation but can see for themselves the viability of an organisation and the impact any fine would have on its ability to continue to operate.
Dr Wilson has raised concerns that organisations present accounts to the court in order to minimise the fine by raising the threat of closure and redundancy if fines are too high.
Speaking on the amendment, Dr Wilson said:
"This would be a major step forward in corporate accountability.
"Honest companies who behave within the rules will have absolutely nothing to worry about. However those unscrupulous operators who break the law will no longer be able to dodge or minimise their fine by pleading poverty.
"Just as the courts can order independent reports into the background of individuals found guilty of offences so this amendment ensures companies and organisations are subject to the same procedures."
The amendment is below
103 After section 20, insert—
<Pre-sentencing reports about organisations
After section 203 of the 1995 Act (reports), insert—
"203A Reports about organisations
(1) This section applies where an organisation is convicted of an offence.
(2) Before dealing with the organisation in respect of the offence, the court may obtain a report into the organisation’s financial affairs and structural arrangements.
(3) The report is to be prepared by a person appointed by the court.
(4) The person appointed to prepare the report is referred to in this section as the "reporter".
(5) The court may issue directions to the reporter about—
(a) the information to be contained in the report,
(b) the particular matters to be covered by the report,
(c) the time by which the report is to be submitted to the court.
(6) The court may order the organisation to give the reporter and any person acting on the reporter’s behalf—
(a) access at all reasonable times to the organisation’s books, documents and other records,
(b) such information or explanation as the reporter thinks necessary.
(7) The reporter’s costs in preparing the report are to be paid by the clerk of court, but the court may order the organisation to reimburse to the clerk all or a part of those costs.
(8) An order under subsection (7) may be enforced by civil diligence as if it were a fine.
(9) On submission of the report to the court, the clerk of court must provide a copy of the report to—
(a) the organisation,
(b) the organisation’s solicitor (if any), and
(c) the prosecutor.
(10) The court must have regard to the report in deciding how to deal with the organisation in respect of the offence.
(11) If the court decides to impose a fine, the court must, in determining the amount of the fine, have regard to—
(a) the report, and
(b) if the court makes an order under subsection (7), the amount of costs that the organisation is required to reimburse under the order.
(12) Where the court—
(a) makes an order under subsection (7), and
(b) imposes a fine on the organisation,
any payment by the organisation is first to be applied in satisfaction of the order under subsection (7).
(13) Where the court also makes a compensation order in respect of the offence, any payment by the organisation is first to be applied in satisfaction of the compensation order before being applied in accordance with subsection (12).".>
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