Group recommends new offence of corporate killing
17 Nov 05
Executive to review law on corporate homicide after group's recommendations
An expert group - set up by the Executive to review the law on corporate homicide in Scotland - has recommended creating a new offence of corporate killing through recklessness.
Under this new offence, organisations whose actions or failure to put policies, practices and systems in place to ensure the health and safety of their employees and the public, could face prosecution if these actions result in death.
This differs from the Home Office's proposals which will essentially build on the English common law of manslaughter, with an organisation being found guilty if the way in which its senior managers managed or organised its activities caused a person's death through gross breach of a duty of care.
The group considered that those proposals would not translate easily into Scots law and could retain the problems associated with identifying a controlling mind - the main difficulty with the current law of culpable homicide as it applies to organisations.
Other key recommendations include:
- Organisations would have a defence if they could show that they had policies and procedures in place which should have prevented death and had a corporate culture which reinforced this.
- Most members considered that there should be a new stand-alone offence to deal with directors and others who are directly responsible for the death of employees or the public.
- The majority of members felt that proposals should apply equally to deaths in Scotland caused by organisations based outside Scotland, and to deaths caused elsewhere by organisations based here.
- The courts should have a wide range of penalties, including imprisonment so that the sentences applicable under the new legislation are appropriate to the circumstances of each case.
The differentiation between English and Scottish policy has been criticised by one leading Scottish lawyer.
Speaking at the "Making a Killing" conference in Aberdeen on Thursday, health and safety expert David Leckie, a partner at Maclay Murray & Spens, said the recommendation of prison terms for directors and senior managers found guilty of corporate killing had major public policy implications.
He said: “As health and safety law was reserved to Westminster under the devolution settlement for reasons of public policy, it would be absurd for the Executive to adopt such a radically different stance on this issue.
"The lengthy and detailed report prepared by the expert panel has, without doubt, raised the temperature considerably and while no doubt being welcomed by unions and campaigners, will be resisted by the majority of employers.
"The dilemma the Executive now faces is that Westminster has already rejected the possibility of liability and imprisonment for such senior managers. The draft Corporate Manslaughter Bill, which will cover England and Wales, applies only to corporations and not to individuals. If Scotland goes it alone on this issue, which appears to be the wish of at least some members of the expert panel, this will have profound implications for all businesses which operate in Scotland.
"Recent record fines under the existing provisions of the Health and Safety at Work Act, including the Transco fine of £15million and the two recent fines of £400,000 imposed on two Edinburgh hotels following fatalities, provide the clearest evidence that existing health and safety law, if properly, enforced can sufficiently punish companies which breach it."
"The practical ramifications would mean that if a train crashed one metre north of the border, senior managers could go to prison, but not if the crash occurred in England.”
Justice Minister Cathy Jamieson said: "The Executive now needs to consider, in detail, the legal and practical issues surrounding those recommendations, such as whether the proposals impact on reserved areas, for example health and safety, before we indicate the next steps.
"What is important is that we get the right solution for Scotland."
The expert group's report and recommendations can be accessed at http://www.scotland.gov.uk/82392 .