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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