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Bill proposal published on plan to strengthen culpable homicide law

8 November 2018

A Labour MSP has launched a proposal for a bill that seeks to ensure that gross negligence that causes death is sufficiently punished.

Claire Baker, Labour member for Mid Scotland and Fife, wants the law of culpable homicide amended "to ensure that where loss of life is caused by the recklessness or gross negligence of individuals, companies or organisations that, where proved, the wrongdoer can be convicted of the offence that reflects the appropriate seriousness and moral opprobrium of what occurred".

In the foreword to her consultation Ms Baker states that in the case of such a death, the family wants to see justice and the wrongdoer, whether an individual or organisation, "convicted of an appropriate crime with the appropriate moral opprobrium", with where appropriate, a custodial sentence. Society would demand the same.

"But," she continues, "as law currently stands that does not happen in relation to the serious criminal offence of culpable homicide."

Ms Baker maintains that whereas individuals and the smallest companies can relatively easiy be convicted of culpable homicide as the law stands, it remains extremely difficult, if not practically impossible, to return such a conviction in the case of a medium sized or larger company, "even in circumstances where there was recklessness or gross negligence on the part of individuals operating in fairly senior positions within the company".

Although the law of corporate homicide was reformed in 2007, the legislation has "failed entirely" in its objective of having one set of rules that applied to all wrongdoers.

Her proposal would amend the law of culpable homicide by making it clear in statute:

  • that a person may be guilty of culpable homicide if that person causes the death of another recklessly or by gross negligence;
  • what are the elements of each of those offences;
  • how an organisation may be liable for each of those offences; and
  • that a Crown servant or agent (including a minister, civil servant or department) may also be liable for each of those offences.

The draft bill would introduce an individual offence tied to the offences that an organisation may commit. The proposed test for the organisation’s guilt turns on looking at the conduct of its office holders. Where they, individually or collectively, acted in a reckless manner that leads to someone’s death, the company would be guilty of culpable homicide. "It is only right that, as well as the company being guilty, the individuals whose action led to the company’s guilt can be convicted and sentenced appropriately", Ms Baker states.

The courts would also be able to "aggregate" the actions of different officeholders at different times, even over a period of years.

Click here to access the proposal. The consultation closes on 15 February 2019.

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