[an error occurred while processing this directive]
BBC News
watch One-Minute World News
Last Updated: Tuesday, 25 July 2006, 15:39 GMT 16:39 UK
Company death law disenfranchised
By David Leckie
Health & Safety lawyer with firm Maclay Murray & Spens

David Leckie
David Leckie says Scotland deserves a detailed explanation
Finally, some 10 years after an original draft bill was first proposed by the Law Commission, the Corporate Manslaughter and Corporate Homicide Bill was formally introduced to the House of Commons last week.

To the surprise of many, the bill, which originally applied only to England and Wales, has unexpectedly been extended to apply to Scotland and Northern Ireland.

The bill is the product of many years of consultation and campaigning, but it is certain those who campaigned most strongly for law reform across the UK will be deeply disappointed.

Under the bill, a corporation will be guilty of the offence of corporate manslaughter - corporate homicide in Scotland - if the way in which any of its activities are managed or organised by its senior managers causes a person's death through a gross breach of a duty of care.

As the new offence applies to incorporated bodies only, no individuals will be prosecuted and there will be no sentences of imprisonment.

The maximum penalty for corporations convicted under the new legislation will be an unlimited fine, which is precisely the same maximum penalty as has been available to the courts for 32 years, under the Health and Safety at Work Act 1974.

Public debate has raged for years over whether existing law, including corporate manslaughter in England and culpable homicide in Scotland, adequately punishes organisations and key executives for health and safety failures resulting in fatalities.

Concerns have been fuelled by a series of disasters, such as Piper Alpha in 1988 - where the lives of 167 offshore workers were lost - and more recent tragedies, including Larkhall, Ladbroke Grove and Hatfield.

In all of these cases, corporate homicide charges were either not pursued or ended in failure.

The fact the bill now applies to Scotland represents a remarkable U-turn by the Scottish Executive
David Leckie

The fatal police shooting in the London Underground of Charles De Menezes one year ago provides further evidence of the limitations of the existing corporate manslaughter law.

Last week, the Crown Prosecution Service announced its decision not to prosecute any individual officer involved in this case and to limit the charges against the Office of the Commissioner for Police to a prosecution for a breach of the Health and Safety at Work Act.

The problem with the existing law of corporate manslaughter is that, in order to secure a conviction, the prosecution must prove a "directing mind" is guilty of the offence.

This has been impossible for the prosecution to prove in cases other than those involving small companies.

As a result, there have only ever been seven convictions of companies for such an offence and all of these have been in England.

Meanwhile, north of the border, the fact the bill now applies to Scotland represents a remarkable U-turn by the Scottish Executive.

Separate, far-reaching legislation for Scotland had repeatedly been promised by Justice Minister Cathy Jamieson, most recently at this year's STUC conference, where she gave a commitment to press ahead with "workable" legislation on corporate homicide before Holyrood's summer recess.

Larkhall explosion
The Larkhall blast led to calls for a corporate killing offence

This commitment followed the appointment of an expert panel by the Scottish Executive last year, whose report was published last November and promised reform which was described by Cathy Jamieson as "radical and innovative".

On almost all of the fundamental issues, the expert panel adopted the opposite approach to that taken by Westminster.

This set the respective parliaments on a collision course, with radically different proposed legislation in this important area of public and workplace safety.

In particular, the recommendations of the expert panel included individual liability, with sentences of imprisonment and innovative penalties, such as corporate probation.

In addition, the panel proposed an extra territorial effect, which would have allowed the prosecution, in Scotland, of any Scottish company found to be responsible for a death anywhere in the world.

Finally, the legislation would have applied to all organisations, whether incorporated or not, and to all Crown bodies.

However, with a neat and silent side-step, this collision has been avoided.

Watered-down

The Scottish Executive has backed down on its proposal to enact separate, robust legislation for Scotland. No explanation for this surprising volte face has yet been offered but it is likely the reason given will be devolution.

As it is in the public interest for there to be an identical health and safety legal framework across the UK, such matters were reserved to Westminster under the devolution settlement.

Therefore, it is arguable that corporate homicide is a health and safety matter, rather than a criminal justice matter and is, therefore, not within the remit of the Scottish Parliament.

If this is the reason for the climb-down, it is surprising this issue was not identified and resolved a long time ago.

As a result of this turnaround by the Scottish Executive, there has been - and will be - no consultation process in Scotland on the content on the bill.

Courtroom
A new offence of corporate manslaughter will be created

Although, there was a lengthy consultation process in England and Wales when the bill was in draft form, the process did not extend to Scotland, as the bill at that time did not apply to Scotland.

Some Scottish companies with operations in England did respond to the English consultation but this was very limited.

The result is that Scotland will have a significantly watered-down new law, which has been extensively debated in the context of English law, but has had little or no input from Scottish businesses, trade unions, support groups, members of the public or lawyers.

The new law flies in the face of the recommendations of the expert panel appointed by the Scottish Executive last year.

Furthermore, because of the very limited scope of the bill, the government's impact assessment has estimated the new law will result in only 10-13 cases a year across the UK and only two cases a year in Scotland.

With this is mind - and considering the dramatic rise in work-related deaths in Scotland last year - the government's conclusion that this limited law will make a "contribution to reducing the rate of work-related deaths and injuries" seems a little hollow.

At the very least, the Scottish Executive owes Scotland a detailed explanation.



SEE ALSO
Dismay over corporate killing law
21 Jul 06 |  Scotland
Corporate killing law to change
21 Jul 06 |  UK Politics
MPs rap company killing law plans
20 Dec 05 |  Business
New moves on corporate killing
17 Nov 05 |  Scotland
Tough corporate killing law looms
23 Oct 05 |  Scotland
Law change delay 'could backfire'
23 Apr 05 |  Scotland
Company manslaughter law drafted
23 Mar 05 |  UK Politics

RELATED INTERNET LINKS
The BBC is not responsible for the content of external internet sites



FEATURES, VIEWS, ANALYSIS
Has China's housing bubble burst?
How the world's oldest clove tree defied an empire
Why Royal Ballet principal Sergei Polunin quit

PRODUCTS & SERVICES

Americas Africa Europe Middle East South Asia Asia Pacific