ABSTRACT
CPS v Aquila Advisory Ltd exposes the potential for a deep regulatory and doctrinal divergence between Scots and English law when it comes to the confiscation of criminal proceeds. This divergence stems not only from differing statutory frameworks under Proceeds of Crime Act 2002 but also from the distinct private law regimes that underpin each jurisdiction. In Scotland, the ambiguity around constructive trusts and the tendency to categorise fiduciary remedies as personal rather than proprietary creates uncertainty in how claims arising from fiduciary misconduct are treated. The Aquila litigation thus reveals a broader problem: the remedial mechanisms available in Scots law for addressing fiduciary wrongdoing remains underdeveloped. While having principle-based coherence, it arguably lacks the pragmatic flexibility needed to respond to complex fact patterns involving bribes, secret profits, and diverted opportunities. Without legislative reform or judicial innovation, there is a real risk of entrenching a dual regime for the recovery of criminal assets across the UK. This paper explores both the doctrinal challenges and the strategic options available to the Scottish legal system, setting out the need for a more consistent and conceptually sound approach to fiduciary accountability.
Bogle, Stephen, Fiduciary Breach and Criminal Proceeds: Reconciling Scots and English Private Law and Asset Recovery (September 2, 2025).
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