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This
page sets out the law ofhomicide in Scotland as it
applies to individuals in Scotland.
As
far as the CCA is aware no company director or senior
manager has ever been prosecuted for the offence of
homicide involving a work-related death
What is regarded as the classic definition of involuntary
culpable homicide is found in the 1936 case of Paton
v His Majesty;s Advocate. In dealing with an appeal
against a conviction for culpable homicide arising
out of the driving of a motor car, Lord Justice-Clerk
Aitchison observed at p.22:
"The
difficulty that the case presents is whether there
was evidence that the appellant was guilty of criminal
negligence in the sense in which we use that expression.
At one time the rule of law was that any blame was
sufficient, where death resulted, to justify a verdict
of guilty of culpable homicide. Unfortunately, this
law has to some extent been modified by decisions
of the Court, and it is now necessary to show
gross, or wicked, or criminal negligence, something
amounting, or at any rate analogous, to a criminal
indifference to consequences, before a jury can
find culpable homicide proved." (emphsis
added)
Although
the Judge uses the term 'negligence' it appears from
comments made in the recent Transco criminal appeal
that it is not necessary to prove that the the defendent
owed a 'duty of care' (as is required in the English
law of manslaughter). Lord Osborne stated in his ruling
that:
From
my consideration of the nature of the common law
crime of involuntary culpable homicide, it appears
to me to follow that civil common law duties of
care, or civil statutory duties of care, can play
no direct part in the assessment of guilt, except
to the extent that their existence may serve to
demonstrate the particular area of responsibility
which an individual may carry. (para 7)
The
fact that no civil law 'duty of care' is required
potentially broadens the range of defendents that
can be prosecuted for the offence - compared for example
to the offence in England.
It
also appears from the same case that it is necessary
to prove a particular state of mind on the part of
the defendant rather than just assessing the conduct
of the defendant against an objective standard. Lord
Osborne stated:
"where
there is an issue of involuntary culpable homicide,
the resolution of the issue depends, not upon some
objective assessment of the conduct of the perpetrator
alone, but upon an assessment of "his state
of mind at the time of the accident", in other
words, an enquiry into whether he possessed the
necessary criminal intent at the material time,
namely a "complete disregard of potential dangers
and of the consequences of his [conduct]".
(para 4)
And
Lord Hamilton stated:
"These
authorities make it plain, in my view, that under
the law of Scotland the mental element (mens rea)
is and remains a necessary and significant element
in the crime of ("lawful act") culpable
homicide. That element may, of course, be proved
in various ways, including proof by inference from
external facts. But it is, in my view, erroneous
to suppose that the actual state of mind of a person
accused of culpable homicide of this kind can be
ignored and guilt or innocence determined solely
on the basis of proof that the conduct in question
fell below an objectively set standard." (para
38)
This
requirement of a mental state is again disimiliar
to the law in England - where it is not necessary
to prove a particular state of mind (though it can
be taken into account) - and makes it more difficult
to prove that an individual has committed the offence
of culpable homicide than that of manslaughter in
England.
However,
it should be noted Scottish approach to proof of a
mental state has traditionally been fairly robust
and "objective", tending to draw inferences
of a particular state of mind fairly readily from
behaviour.
To
read about the law of manslaughter in England, click
here
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