On 17 November 2005 the expert group appointed by the Scottish Executive to consider the introduction of a new statutory offence of corporate culpable homicide issued its report. As expected, the group proposes the introduction of a new statutory offence of corporate killing. The group recommends that this should apply not only to incorporated companies but also, in so far as it is possible for it to do so, to unincorporated and Crown bodies.
The Scottish recommendations differ considerably from the draft bill currently being considered in England and Wales. The most significant and contentious difference is the Scottish group's proposals for the introduction of individual offences. The draft bill for England and Wales does not make provision for individual offences; the proposed statutory crime of corporate manslaughter will affect companies and some Crown bodies only.
At present, Scots law allows a company to be prosecuted for the common law crime of culpable homicide; the unsuccessful prosecution against Transco following the Larkhall gas explosion is the only example of such a prosecution in Scotland. This case confirmed that in Scotland, as in England, it is practically impossible to prosecute large companies for common law crimes.
The most contentious part of the group's proposals for Scotland is their majority recommendation that two new individual offences – applying to named persons – should be introduced. One would apply where an individual has been responsible directly for a death and the other would catch senior managers/directors whose acts or omissions contributed directly to a death; the latter offence would only apply when the corporate body had been convicted. However, the introduction of individual offences was opposed by the business and Health and Safety Executive representatives on the expert group. Business concerns were that individual offences may discourage both new investment in Scotland and the taking up of senior management posts by talented individuals. The Health and Safety representative was opposed to individual offences on the basis that most workplace deaths are as result of organisational, not individual failure.
The report proposes a range of innovative penalties. In addition to custodial sentences (for the individual offences) these include:
- Equity fines – where a company is required to issue new shares to the value of a fine. These are seen as more punitive than cash fines as they water down the value of a company.
- Corporate probation – where the court orders action in relation to organisational matters connected with the offence.
- Community service orders – where a corporate offender is required to undertake a project that benefits the community.
Contrastingly, the proposals in England build on the English common law of manslaughter and indicate that a company would be found guilty of corporate manslaughter where a person's death has resulted from management failure. The court would consider the actions of senior decision makers as a whole. The maximum penalty would be an unlimited fine for the organisation.
Of particular concern for both business and the Heath and Safety Executive is that there could be significantly different regimes operating north and south of the border. We will keep you updated on the progress of these proposals in both jurisdictions.