The primary purpose of the Bill is "to move away from the anachronistic notion of a controlling mind and to have a system of culpable homicide that reflects the modern way that organisations operate through delegated authority by looking at the conduct of office holders". The draft Bill would mean a senior manager could be convicted of culpable homicide if that person is held responsible for causing a death "recklessly or by gross negligence".
The new statutory offences would be in addition to, not substitutes for, the existing common law offence of culpable homicide.
The principal arguments in favour of creating a statutory offence are deterrence, and the current difficulty in securing a conviction for corporate culpable homicide for individual directors and managers of medium or larger sized companies in Scotland. Although larger companies can be convicted under health and safety legislation, it is very difficult to convict them (or their directors or managers) of culpable homicide.
This will be the third Member’s Bill proposed in the Scottish Parliament seeking to legislate in this area. The Scottish Government consulted widely on corporate homicide in 2005 but its deliberations were overtaken by the UK Government’s consultation that led to the Corporate Manslaughter and Homicide Act 2007. The 2007 Act has received criticism from politicians and union officials who say it has had limited impact since its introduction, with no reduction in the number of deaths caused by conduct of companies.
The difficulties in obtaining a conviction were highlighted in the only case in Scotland where a company has been charged with culpable homicide. Transco PLC was charged with the homicide of four people who died in 1999 when a massive explosion destroyed a home in Larkhall. However all charges were dismissed against the company. The case failed as it was impossible to prove a charge of culpable homicide without naming an individual or group of individuals who were the "controlling mind" of the company. The Consultation Paper describes this as "the Transco loophole". Transco were however fined a record £15 million.
The present consultation document invites input on a number of matters which include:
- Views on whether there is a need for the Bill
- The need for two different statutory kinds of culpable homicide
- Definitions – "causing death recklessly" and "gross negligence"
- Financial implications
DWF Scotland has already been monitoring the Scottish courts' approach to convictions and fines under health and safety legislation. The table here provides an overview of fines made in Scotland since January 2017. The level of fines particularly in fatal cases is significant and will have a lasting impact on the companies involved. If the purpose of this Bill is deterrence then it might be argued that the level of fines now being imposed is already sufficient.
What's next?The consultation will run until February 19. A final proposal will then need the support of at least 18 other MSPs to allow Claire Baker MSP to introduce a Member’s Bill. The Bill is expected get the 18 votes as SNP and Labour MSPs will be likely to support its introduction.
We will provide a regular HSE update going forward which will track the progress of the proposed Bill and provide updates on trends in convictions and sentences for health and safety offences.