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Commission tackles partnership prosecution gaps

13 December 2011

Criminal proceedings against a partnership should be allowed in the five years following its dissolution, the Scottish Law Commission recommends today.

In its Report on the Criminal Liability of Partnerships, the Commission tackles a problem highlighted by the fatal fire at the Rosepark nursing home in 2004: a partnership cannot be prosecuted once it has been dissolved. In the Rosepark case, health and safety breaches alleged against the partnership were held incompetent as it had by then ceased to exist, and a second prosecution against the individual partners was also stopped by the courts.

The report includes a draft bill to give effect to its recommendations. This area of the law is reserved to Westminster.

Patrick Layden QC, lead Commissioner on the project, said: "The Commission's report recommends a simple targeted solution to the problem thrown up by the Rosepark fire. While we would very much prefer to deal with this matter as part of the comprehensive reform of partnership law which we (and the English Law Commission) have recommended, these limited provisions will address the dissolution issue pending general reform."

The Scottish Law Commission and the Law Commission published their joint report on Partnership Law in 2003, but it has not yet been implemented.

The Scottish Commission added that it was not concerned with the merits of the Rosepark case.

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