An Expert Group, commissioned by the Executive to review the law on corporate homicide in Scotland, has published a report recommending the creation of a new offence of corporate killing through recklessness. Under the new proposals, directors of companies involved in accidents that result in the death of employees or members of the public could face imprisonment.
The Group was set up in April this year and included representatives from the union movement, industry, the law and academia. The long-awaited report recommends that organisations whose actions or failure to put policies, practices and systems in place to ensure the health and safety of its employees and the public, could face prosecution if these actions result in death. It advises that companies should have a defence against charges if they showed that they had policies and practice in place that should have prevented the death and a corporate culture that reinforced these.
The proposed Scottish offence differs from the plans being considered by ministers in Westminster, which essentially builds on the English common law of manslaughter, with an organisation being found guilty of corporate manslaughter if senior managers cause a person's death through a gross breach of the 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.
While the draft bill for England and Wales backs away from making managers individually accountable and carries an unlimited fine as the maximum penalty, the Scottish report recommends introducing two individual offences and suggests the courts should have a wide range of penalties available, including imprisonment. It also recommends that, as far as possible, the offence should cover unincorporated and Crown bodies.
Other suggestions include ensuring that companies based overseas are liable for deaths they may have caused in Scotland, and Scottish companies are liable for deaths they may cause in other nations.
Justice Minister Cathy Jamieson described the proposals as innovative and radical. She 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 is available here: