Northern exposure

Scotland has eschewed the English approach to corporate manslaughter and is instead going it alone. David Leckie argues that this is playing fast and loose with people’s lives

In 1996, the Law Commission put forward its proposals for a new offence of corporate manslaughter. Nine years later, just weeks before the general election and after countless rounds of consultation, discussion and general procrastination, the Government published its draft Corporate Manslaughter Bill, which applies to only England and Wales. This move is certainly long overdue, as this area of law needs urgent clarification. In addition to the big-name cases, around 250 people are killed annually in the UK through workplace accidents. This figure excludes the estimated 3,000 who die from asbestos-related diseases and the 1,000 killed while driving as part of their job or commuting.

Following the bill’s publication in March, the Scottish Executive was widely expected to begin moving towards similar legislation for Scotland, possibly in parallel with Westminster. However, just days later, Justice Minister Cathy Jamieson announced that the promised consultation on a Scottish corporate killing law would no longer be taking place. Instead, an ‘expert working group’ has been charged with the onerous task of considering the issue and reporting back.

The complexities that the Scottish Executive will have to tackle in order to reform the law were highlighted at a recent public debate in Edinburgh, organised by Maclay Murray & Spens in conjunction with the Law Society of Scotland. Speakers included leading senior counsel in Scotland Richard Keen QC, Ronnie McDonald of the Offshore Industry Liaison Committee and expert working group member Dr Dave Whyte of the University of Stirling. A surprising 95 per cent of those attending voted against the motion that the introduction of legislation in Scotland, similar to the English bill, would be a positive development. The vote contrasted dramatically with that of a similar debate, held in London last month, at which 60 per cent of the audience supported the motion. The London speakers were Richard Lissack QC, Janet Asherson of the Confederation of British Industry and David Bergman of the Centre for Corporate Accountability.

The mood at the Scottish debate was that, rather than follow the English model, which many feel is flawed, the Scottish Executive should consider the issue very carefully through the expert working group. This could include making individuals culpable, which is not on the agenda south of the border. However, if the English proposals become law, the political and social policy ramifications of potentially different legislation in Scotland will be considerable.

Under the Westminster bill, an organisation can be found guilty if the way in which any of its activities which are managed or organised by senior managers causes a person’s death through a gross breach of duty of care. Corporations, as well as most Crown bodies, can be prosecuted. Much to the chagrin of certain campaigners and unions, individuals, including directors, officers or managers, cannot be prosecuted for corporate manslaughter, so there are no sentences of imprisonment.

A ‘senior manager’ is defined as someone who plays a significant role, either in making decisions about how the organisation’s activities are managed, or in the actual management of those activities. Breach of a duty of care will be “gross” if the conduct which led to it falls far below what could reasonably be expected of the organisation in the circumstances.

This will be a question of fact for the jury to decide, following consideration of whether there was a failure to comply with any relevant health and safety legislation or guidance. If there was such a failure, the jury must consider its seriousness and whether the senior managers knew, or should have known, that the organisation was failing to comply; whether they were aware, or ought to have been aware, that this posed a risk of death or serious injury; or whether they sought to profit from that failure.

The new bill is a significant change from the law as it currently stands, under which it is virtually impossible for a corporate manslaughter or culpable homicide prosecution to succeed against any company, other than a tiny one. This is because a successful prosecution under the current law must prove the identity of a “directing mind” at the company to whom any failures can be attributed. The difficulties with the current law are not simply theoretical, as we have seen from a series of high-profile trial collapses.

Paradoxically, this is not the case with the provisions of the Health and Safety at Work Act 1974 (HSWA). As well as being simple, versatile and enduring, the HSWA’s maximum sentence of an unlimited fine is exactly the same as that proposed under the bill. It is also already widely used, with successful prosecutions under HSWA covering a diverse range of organisations and individuals, including architects, safety consultants, teachers, local authorities, companies of all sizes and even the Environment Agency.

As the expert working group in Scotland considers this complex area of law, it is clear that the existing common law of corporate culpable homicide or manslaughter in health and safety cases is totally inadequate for prosecutors looking to secure a conviction.

We need to put an end to the string of high-profile prosecutions which have collapsed across the UK, such as the Herald of Free Enterprise, Great Western Trains and most recently Barrow County Council. Either the common law must be replaced with a statutory regime, which is clear and enforceable, or prosecutors and judges should ensure that the existing HSWA provisions are enforced properly and in a consistent manner, which is certainly not the case at present.

Where lives are at stake, it is a vital matter of public policy that we have parity between Scotland and England. Particularly as the HSWA is identical across the UK and was reserved to Westminster under the Scotland Act. For precisely this reason, the prospect of a significantly different regime north of the border is plainly absurd. Unless the Scottish Executive takes the necessary action without delay, organisations and individuals facing prosecution for a fatality in Scotland could be treated quite differently than if the incident had occurred in England. This state of affairs cannot be in the public interest and must not be allowed to continue.

David Leckie ia a partner specialising on health and safety law with Maclay Murray & Spens