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Prosecution of fatal care home fire firm falls

25 July 2008

The Crown has failed in its attempt to prosecute a former partnership which ran a care home in which 14 residents died in a fire.

The criminal appeal court ruled today that it was not competent to bring an indictment against "Rosepark Care Home, also known as Rosepark Nursing Home, a now dissolved firm", which owned and operated the home of that name in Uddingston where the fatal fire took place in January 2004.

In February 2005 the firm was dissolved by agreement of the partners, Thomas and Anne Balmer and their son Alan. A previous indictment against the partners was dismissed by Lord Hardie on the basis that the charges were brought under the Health and Safety at Work etc Act 1974 against the partners as employers, but the firm, which was a separate legal entity was the true employer. The Crown abandoned an appeal against this decision.

In outline the Crown argued in support of the present indictment that a partnership continued to exist after dissolution for the limited purpose of winding up its affairs and settling its outstanding liabilities; that the former partners continued to have authority to act on the firm's behalf for that limited purpose; and that the present indictment against the firm was such an outstanding liability.

However Lords Eassie and Wheatley and Lady Paton, after a detailed examination of the common law prior to the Partnership Act 1890 as well as the 1890 Act and cases decided since, ruled that the dissolved partnership had no continuing legal personality following dissolution and the indictment was incompetent.

Further options

Lord Eassie, speaking for the court, added that the court was conscious of the undesirability of a prosecution being frustrated by a partnership dissolving itself, but there might be routes by which the individual partner responsible for the act or omission could be identified and prosecuted in his or her personal capacity.

In a statement Solicitor General Frank Mulholland QC said that the court's decision had brought an important clarification to Scots law.

"Although this means that the current indictment cannot proceed, consideration is being given to a fresh indictment. As this is a complex area of law and a detailed judgment, Crown counsel will study the judgment and give consideration to the best way forward.

"Crown Office officials and the procurator fiscal have met the families to explain the judgment and the options open to the Crown. We are grateful to the families for their patience in this matter."