Embargoed: 00.01 am, 16 January 2004

Scotland's Judges Develop law of
Corporate Homicide

Scotland's High Court of Justiciary sitting as a Court of Criminal Appeal has ruled for the first time that companies can be prosecuted for the offence of ‘culpable homicide’. It has also established a principle of law – wider than the legal test that exists in England – that allows companies to be prosecuted without needing to prosecute a director or senior manager.

The Court’s decision – made on 3 June 2003 but only published recently – concerned an appeal by Transco PLC against an indictment that alleged the deaths of four people in the a gas explosion in Larkhall was the result of the company’s culpable homicide. The court ruled that the indictment against the company should be quashed.

David Bergman, Director of the Centre for Corporate Accountability stated:

"Although this ruling resulted in the quashing of the prosecution of Transco, it does open up the possibility of the Crown office prosecuting more companies for culpable homicide in the future. It will be interesting to see whether new police procedures will be established to investigate work-related deaths in Scotland, and we will be writing to the police and Crown Office about this. "

In English law a company can only be prosecuted if there is evidence to show that an individual, deemed to be a ‘directing and controlling mind’ of the company, can be prosecuted. This is known as the ‘identification doctrine’.

In its ruling, however, the Scottish court stated that although this identification doctrine was also part of Scottish law, it applied differently in Scotland. It stated that a ‘directing mind and will’ of the company could include both an individual to whom powers and responsibilities were delegated, and also a "group of persons, such as a committee of the directors, whose delegated powers are to be exercised on a collective basis".

Lord Hamilton stated:

[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."

The Crown’s case against Transco failed because, according to the court it was not possible to ascribe to the company, knowledge known by individuals within such committees or delegated group at different points of time. As Lord Hamilton stated 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."

Transco PLC is the only company ever to have been charged with Homicide in Scotland. In England, five companies have been convicted.

As far as the CCA is aware, no individual company director or senior manager has ever been prosecuted for the offence of homicide involving a work-related death in Scotland. In England, eight company directors have been convicted of manslaughter.

Transco still faces health and safety offences charges, relating to alleged breaches of the Health and Safety at Work Act 1974.

To contact the CCA, Call - 020 7490 4494