Corporate killing plans examined

Ministers are considering proposals from an expert group which has called for a new offence of corporate killing to be introduced in Scotland.

Laura Cameron is a partner in the commercial litigation team at legal firm McGrigors and has defended firms accused of breaching the Health and Safety Act. She examines the recommendations.

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The Scottish Executive appears poised to introduce more draconian legislation in relation to corporate killing than is presently proposed in England and Wales.

The Larkhall gas explosion led to calls for change

The public disquiet after the ruling to throw out the charge of corporate homicide in the Transco case caused Justice Minister Cathy Jamieson to set up an expert group to review the legal position in Scotland.

The group rejected the opportunity of standing shoulder to shoulder with Westminster in relation to the Corporate Manslaughter Bill and opted instead to make recommendations for Scotland which might "provide a useful basis for amending the law in all UK jurisdictions".

The proposals include a new offence of corporate killing through recklessness and a stand-alone offence to deal with directors and others who are directly responsible for the death of employees or members of the public.

Most of the group's members also thought there should be a secondary offence for directors and senior managers whose actions or omissions significantly contributed to the offence being committed.

The group proposed the introduction of a wide range of penalties, including "corporate probation", equity fines and community orders.

Corporate culture

It also recommended that the new law should cover deaths which occur in Scotland as well as those which take place abroad as a result of organisations based in Scotland.

The group wants to ensure that organisations adopt an appropriate "corporate culture". What exactly does this mean?

Organisations will require to show not only that they have policies and procedures in place which should have prevented such an incident, but in addition that they have a culture which reinforces these policies and procedures.

While the group recognises that it will not be easy to translate some of their proposals into law, there is no doubt that something significant is going to happen Union seeks accountability

If it is clear that an organisation has failed to take reasonable steps to prevent the wrong culture arising - a culture which encourages, tolerates or leads to an offence - then it is clear that this will be viewed as an aggravating feature of the offence.

A due diligence defence will be available along these lines.

It is proposed that the obligations and duties on directors and senior managers should go further than at present, where there needs to be a direct involvement in the incident.

Instead, it is proposed that a prosecution would be allowed if there was an indirect element which made a "significant contribution" to the offence.

Investment in business

That is an alarming prospect for many people in positions of responsibility across Scotland.

While the group recognises that it will not be easy to translate some of its proposals into law, there is no doubt that something significant is going to happen, and soon.

Of course, it remains to be seen what this will mean for investment in business in Scotland.