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MSP proposes making Scottish company directors liable for "reckless or negligent" workplace deaths

Out-Law News | 18 Dec 2014 | 7:55 am | 2 min. read

Company directors in Scotland would be criminally liable for workplace deaths caused "recklessly" or through "gross negligence" under plans contained in a private members' bill which has been introduced to the Scottish parliament.

Richard Baker, a Labour Party MSP from the North East Scotland region, said that existing laws governing corporate homicide were "not able to cope with modern times and, in particular, modern business and other relationships". He is now consulting on the contents of a proposed new Scottish law until 9 March 2015.

Health and safety law expert Katherine Brydon of Pinsent Masons, the law firm behind Out-Law.com, said that although the likelihood of the bill becoming law before the 2016 Scottish parliamentary elections was "slim", it would "reignite the debate about why we do not see more 'directors in the dock' following fatal accidents at work in Scotland".

"Irrespective of whether the bill becomes law the police, Health and Safety Executive and the Health and Safety Division of the Crown Office and Procurator Fiscal Service are likely to face questions about why directors are not more routinely investigated and prosecuted, and why there have been no corporate homicide prosecutions in Scotland since that offence was created in 2008," she said. "In relation to future accidents at work, that can only lead to greater scrutiny by the authorities of how health and safety is managed by directors and senior managers."

"Considering the members' bill deadline of June 2015, the likelihood of this bill becoming law is slim, at least in this parliament. The bill also faces a range of hurdles before it comes close to legislative scrutiny, including the competence of the Scottish parliament to legislate since health and safety is currently a reserved matter. However, I understand that the proposals have the backing of the entire shadow cabinet. This is a recurrent issue for the trade unions and Labour is likely to revive the matter if it doesn't gain traction this time," she said.

Cases of corporate homicide in the UK are governed by the 2007 Corporate Manslaughter and Corporate Homicide Act, which was intended to make it easier for organisations to be held accountable for deaths caused by their failures. Under the act, an organisation is guilty of a criminal offence if the way in which its activities were managed or organised caused a person's death, and amounted to a "gross breach" of a relevant duty of care owed by the organisation to the deceased. How the activities were managed or organised by senior management must be a substantial element of that gross breach.

Before the new regime came into force in 2008, companies and public bodies could only be found guilty of an offence if a senior figure acting as the company's 'controlling mind' was also guilty. Convicted organisations can receive an unlimited fine for the new offence, and can be required to publicise the fact that they have been convicted and to provide details of that conviction.

Baker's proposed Culpable Homicide (Scotland) Bill would redefine the Scottish offence of 'culpable homicide' in terms of causing death by recklessness or gross negligence. Culpable homicide is the Scottish equivalent of manslaughter. It would also allow "office-holders in organisations", including certain public bodies, to be found guilty of the offence.

Introducing his consultation document, Baker said that 2007 Act had "utterly failed".

"There has been no reduction in deaths; but there has not been a single conviction in Scotland under the Act," he said.

"The intention of this proposed legislation is not only to create appropriate legal remedies for loss of life where the recklessness or gross negligence of employers is proved, but also to help foster a greater focus on health and safety in organisations and to reduce the numbers of lives lost at work in Scotland … I am convinced that we require an Act of the Scottish Parliament that will ensure that individuals and organisations will be equal before the criminal law and will be equally capable of conviction for culpable homicide in appropriate circumstances," he said.

On average, 20 people die at work in Scotland every year, according to figures from the consultation. In 2012/13, there were 22 workplace fatalities in Scotland.