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Old Common law offence of corporate homicide in Scotland
Back to main manslaugter/homicide page

This page sets out the law of homicide in Scotland as it used to apply to Companies - and still applies in relation to (a) deaths that took place before 6 April 2008 (b) where the death has taken place after 6 April, but some of the evidence of management failure concerns events that took place before that date

Only one company has ever been charged with Homicide in Scotland.

This was the company, Transco PLC, the gas supply company. It was charged with the homicide of four people who died on December 22, 1999 when a massive explosion destroyed a family house in Larkhall. However on 3 June 2003, Scotland's High Court of Justiciary sitting as a Court of Criminal Appeal dismissed these charges against the company.

In the Transco case, the High Court of Justiciary ruled that a company can be prosecuted for culpable homicide. Prior to this decision, there had been no definitive ruling that a company can be prosecuted for this offence in Scotland.

It also ruled that in deciding whether or not a company has committed the offence, it is necessary to apply the 'identification' doctrine set out in English law.

However two out of the three judges interpreted this doctrine (oringially set out in the case of Tesco v Natrass) in a much wider manner than the English courts have done.

Lord Hamilton, supported by Lord Maclean, stated that:

As Lord Diplock observed in Tesco Ltd v Nattrass at p.199, the articles of a company incorporated under the Companies Acts commonly provide that its business shall be managed by its directors. Those directors, acting collectively, may delegate their powers and responsibilities to a greater or lesser degree to one or more of their number or to employees or agents of the company. Such delegation may be to a group of persons, such as a committee of the directors, whose delegated powers are to be exercised on a collective basis. It is clear from the speeches in Tesco Ltd v Nattrass that in relation to the application of the principle of the "controlling mind and will of the company" their Lordships found no difficulty in viewing a collective delegate group as capable of having and of exercising the company's directing mind (see, for example, at p.171F, p.180B-D, p.187F-G and p.199F-H). It would be surprising if they had found such difficulty, given that the directors viewed collectively (commonly referred to as the board), from whom, in general, all delegated powers flow, themselves constitute a collective group. Accordingly, for the application of the identification principle of corporate criminal responsibility, it is unnecessary that some individual, having delegated authority of a kind to render him for the relevant matter the directing mind and will of the company, should have acted (or failed to act) with a requisite state of mind. The principle can equally apply if the delegated authority of the kind mentioned is to a group which then acts (or fails to act) collectively. Interesting questions might no doubt arise if there were a division of opinion amongst those who participated in a critical collective decision or if the knowledge with which the decision was taken was not co-extensive among those participating in it. But in principle a collective decision taken by a delegate group with the requisite knowledge is, in my view, as attributable to the company as a decision by an individual. (emphasis added)

In English law, a company can only be prosecuted if an individual deemed to be a 'controlling mind and will of the company' can be prosecuted.

The Transco Case
On December 22 1999 a massive explosion destroyed a family house in Larkhall, Lanarkshire. All four occupants of the the house including two children were killed. They were Andrew Findlay (34), his wife Janette (37) and their children Stacey (13) and Daryl (11).

The Lord Advocate served on Transco PLC an indictment which alleged the company had committed, in the first alternative, the offence of 'culpable homicide', and in the second alternative, a contravention of the Health and Safety at Work Act 1974.

To download a copy of the original indictment, Click Here (word document). It alleged that Transco had shown "a complete and utter disregard for the safety of the public" and particularly that of the couple and their children; that the firm had failed to devise, implement or maintain any adequate or effective policy for the maintenance, inspection or replacement of ductile iron pipes; that the information on record systems for the gas pipe which passed through the garden at the family's home was inaccurate and incomplete'; and that the firm failed to properly investigate computer records which showed that a gas main had leaked on 27 separate occasions and that escapes of gas from the main in Carlisle Road had been reported by members of the public on at least 13 occasions between July 1988 and December 1999.

In response, the company challenged the competancy, relevancy and specification of the charges, and also claimed that if the prosecution proceeded to trial, the Lord Advocate would be acting incompatibly with the appellant's rights under certain Articles of the European Convention on Human Rights and Fundamental Freedoms.

At the first hearing - the complaints of lack of specification were not insisted in and the challenges in respect of competency and relevancy were confined to culpable homicide - Lord Carloway ruled against the company. He stated that:

"It may well be that in England there is a need to identify a particular person who could, if charged, also have been guilty of manslaughter, before a company can be found to have committed that crime. It is not a requirement under the Scots law of culpable homicide"

The company then appealed to the Criminal Court of Appeal.

In the ruling, Lord Hamilton summarised the main features of the Lord Advocate's indictment in the following way:

A number of features of the charge may be noticed. First, the knowledge which the Crown offers to prove is "knowledge" of the appellant itself, that is, of the non-natural corporate body, not the knowledge of any particular individual or individuals within the appellant's organisation. Second, that "knowledge" is in some instances said to have existed throughout the period from 24 August 1986 to 22 December 1999, in one instance acquired following investigation into particular other explosions (of which one occurred in 1988 and another in 1995), and otherwise acquired at some unspecified time or times. Third, it is in the face of risks of which it is said that the appellant, the company, was "aware" and "with a complete and utter disregard for the safety of the public and in particular for the safety of [the four deceased]" that the particular failures leading to the explosion and deaths took place. Fourth, the failures for which the appellant is sought to be made criminally liable are "through a number of engineering and other management committees and posts established within your organisation to take decisions on all issues relating to the safe transportation and distribution of gas through pipes", that is, the instrument of the appellant's failures throughout the relevant period is the identified committees and posts. Fifth, no human individual or individuals (other than the deceased) is mentioned in the charge. The "posts" were no doubt held by particular individuals from time to time; the "committees" were no doubt also comprised of individuals, though their composition, it may be taken, varied over time. Finally, and importantly, it is not suggested on the face of the charge that any individual or individuals or any group of individuals acting collectively within the appellant's organisation was, against knowledge had by him, her or them personally and conduct in the light of that knowledge, guilty of the culpable homicide of the deceased. In the course of the hearing the advocate depute confirmed that, having regard to the evidence available to the Crown, no such charge could be brought against any natural person or persons.

The Crown argued it was not necessary to identify a single individual who could be prosecuted for culpable homicide in order for the company to be prosecuted. It argued that the "directing mind and will of the company" could be identified with a number of specified committess and posts who had been delegated to undertake various task by the Board of Directors at different points of time. It argued, as summarised by Lord Osborne in the Court of Appeal's ruling, that:

"The identification principle discussed in Tesco Ltd v Nattrass did not require that there should be a decision by a single individual or by a group of individuals all concurring in the decision. A collective decision was sufficient. It was also possible to examine the collective decision- making of a company's board or of its delegate committees over time. This might be of particular significance where those decisions reflected a consistent policy pursued by the company. Provided that the requisite delegation ("of mind and will") was demonstrated, the knowledge of a delegate post-holder or committee was the knowledge of the appellant company; that might be knowledge actually had by such a delegate (either from general sources of knowledge available to a skilled post-holder or skilled committee members or from particular information supplied to him or them) when relevant conduct occurred or, more broadly, knowledge earlier acquired by the board or by a delegate committee or post-holder, even if that was not knowledge actually had by the board or the committee or post-holder whose conduct was said to have caused the deaths; in the latter instance knowledge acquired by the company could be regarded as retained by the company and accordingly available in judging the conduct leading to the deaths. So, although no individual or individuals might have had such actual knowledge as was required in the circumstances for the mens rea of culpable homicide and acted (or failed to act) with that state of mind, the company could be regarded as having acted with the requisite state of mind. ..... The concept of aggregation which had been rejected in the English authorities was the accumulation of the acts of employees of a company who had not constituted its directing mind and will, not, as here, the accumulation of the acts of those from time to time constituting that directing mind and will. " (para 61)

However, Lord Hamilton, supported by Lord Maclean, stated that the Crown's case failed, not because it had failed to identify a particular individual, but because it was not legitimate under the identification doctrine:

"to attribute to the appellant company states of knowledge or awareness of individuals or groups which from time to time constituted the controlling mind of the company and to regard such knowledge and awareness as, in effect, "banked" with the company so that, when other individuals or groups subsequently having and exercising the directing mind and will of the company acted (or failed to act), the company is treated as having so acted (or failed to act) with the accumulated states of knowledge and awareness of all those hitherto having and exercising the directing mind and will. In my view, such attribution is not legitimate."

To download the ruling Click Here (word)

To see CCA press release when case collapsed, click here


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Page last updated on April 11, 2008