Background to the Culpable Homicide (Scotland) Bill
In December 1999 Andrew Findlay, his wife Janette and their two children were killed following a gas explosion in their home in Larkhall.
For the first time in Scotland a company, in this case Transco was indicted on charges of culpable homicide in addition to breaches of health and safety legislation.
The company fought the decision to prosecute the culpable homicide charges and Lord Carloway’s original decision that these charges were relevant in Scots law was overturned by the Court of Appeal.
Their view was that, although under Scots law it was possible to prosecute organisations as well as individuals for culpable homicide, the prosecution had failed to identify any controlling mind or minds within the company whose actions or decisions had led to the tragedy.
Furthermore, the Court of Appeal judges took the view that the prosecution had erred in aggregating the actions and decisions of individuals and committees. They took the view that it would not be appropriate to identify individuals over an extended period of time, an aggregate the failures when reaching their decision to prosecute.
In June 2003, Karen Gillon MSP introduced a proposal for a Private Members Bill, Culpable Homicide by Corporate Bodies to ensure that the law would be changed to ensure that large organisations such as Transco could be held accountable for any failures that led to deaths of Scottish citizens.
This Bill was subsequently withdrawn following a commitment by the Scottish Executive to the MSP that they progress legislation at an appropriate time.
However, in March 2005, the Home Office issued the publication “Corporate Manslaughter, Draft Bill for Reform (1) that outlined the proposals for England and Wales only.
At the same time Cathy Jamieson appointed an Expert Panel to examine culpable homicide legislation in Scotland and make recommendation as to how the law could be strengthened. While the Expert Group considered the Home Office proposals it was decided that these would not resolve the anomalies in the existing Scottish justice system. The panel produced its own recommendations in September 2005 and the findings published in November 2005 (2).
At the same time the proposals for England and Wales were examined by a joint Home Affairs/ Department of Work and Pensions Select Committee as part of the pre-legislative scrutiny.
The cross party committee stated in their final report that the Government should be doing all it can to ensure that there is as little variation as possible, between Scotland and England and Wales, going on to say that the recommendations contained in their joint report would bring the Government’s Draft Bill closer to the reforms proposed by the Scottish Expert Group.
Their recommendations to the Government in their final report included:
Amending the Bill to ensure individual directors can be prosecuted. Extension of the Crown Immunity provision to cover more crown bodies including the army when not in the field of combat. Changing the ambiguous senior management identification test to one of management failure. Extending the jurisdiction of the offence to cover deaths in other parts of the United Kingdom, with a view to further extending the jurisdiction to cover deaths in other European countries in the future. A wider range of innovative sanctions against companies.
In making these recommendations the committee recognised the work done in Scotland. Their full report (121 pages) was published in December 2005. (3)
However, the Government in their response (4) failed to accept the recommendations of the cross part committee other than giving a commitment to review the inclusion of the identification requirement, the need to identify the failing of a senior manager.
The Government introduced the legislation and the first reading was on Friday 21st July. As suspected the Bill as introduced has been altered to include a new offence of Culpable Homicide for Scotland despite our objections.
The STUC are of the view that without substantial amendment including offences against individual managers and directors and the removal of the senior managers test then the Bill imposed on Scotland, without any consultation, will not deliver legislation that will apply equally to large and small organisations.
This is why the trade union movement in Scotland is being asked to support Karen Gillon’s latest proposal for a Private Members Bill and we will be urging affiliates and their members to lobby MSP’s and model letters have been attached for this purpose.
We will also be discussing the Westminster legislation with supportive MPs to investigate realistic opportunities for amendments along the lines suggested by the select committee.
1) Corporate Manslaughter, Draft Bill for Reform
2) Corporate Homicide: Expert Group Report 2005
Appendix
Letter 1 - Suggested personal letter of support to Karen Gillon for individual members.
Letter 2 - Suggested letter of support to Karen Gillon For Trade Union Health and Safety Representatives
Letter 3 - Suggested letter to Members of Scottish Parliament from individual members.
Appendix
Letter 1
Culpable Homicide (Scotland) Bill Suggested personal letter of support to Karen Gillon
Your address
Karen Gillon MSP
7 Wellgate
Lanark
ML11 9DS
Dear Karen
I am writing to express my personal support for your proposal for a Private members Bill in the Scottish Parliament that seeks to ensure that the law of culpable homicide is applied consistently across our society.
It is a matter of great concern that many families in Scotland suffer the loss of loved ones through the reckless or negligent actions of others but, at this point of time, are denied justice and those who could be responsible for their deaths appear to be immune from prosecution.
(Insert any details regarding personal bereavement as a result of workplace accidents and views on justice received)
This is a situation that is contrary to most people’s perception of our justice system in that the law should be seen to be applied consistently and equally across the whole of society.
It appears ludicrous that in Scotland any otherwise law abiding individual, can through their own actions be held accountable and prosecuted for culpable homicide and, more likely than not, imprisoned while others are untouchable for their equally reckless or negligent actions that result in death.
Therefore, I welcome your efforts to ensure that organisations and, those who make decisions on behalf of those organisations are treated in the exactly same way as any other person who causes the involuntary homicide of another.
I wish you success in your efforts in to secure justice for all families who lose loved ones as a result of corporate failure, ensuring those responsible a accountable for their actions.
Yours sincerely
Letter 2
Culpable Homicide (Scotland) Bill Suggested letter of support to Karen Gillon (Trade Union Health and Safety Representatives)
Your address
Karen Gillon MSP
7 Wellgate
Lanark
ML11 9DS
Dear Karen
Culpable Homicide (Scotland) Bill
I am writing to express my personal support for your proposal for a Private Members Bill in the Scottish Parliament that seeks to ensure that the law of culpable homicide is applied consistently across our society.
As a trade union appointed health and safety representative for (insert organisation) it is a matter of some concern the involuntary deaths of union members and many other members of the public are being totally ignored by the Scottish criminal justice system.
The unlawful killing of any individual has to be an issue that is investigated and prosecuted through our criminal justice system. A significant number of involuntary deaths are investigated every year but the perpetrators face no threat of being prosecuted for culpable homicide. This is because the offences are committed by organisations, or individuals within those organisations, who take decisions that result in the deaths of others.
As is the case with other new legislation introduced in the Scottish parliament, namely the Emergency Workers (Scotland) Act 2005 and the Smoking, Health and Social Care (Scotland) Act, trade unions believe that your draft Bill will have a positive impact on the health and safety of Scottish workers.
However, the primary aim of any legislation to hold individuals and organisations accountable for the deaths of workers and members of the public has to be to ensure those that suffer the greatest pain receive justice.
This is all we would expect in a civilised society and I fully support your proposal and wish you success for its progress.
Yours sincerely
Letter 3
Culpable Homicide (Scotland) Bill
Suggested letter to Members of Scottish Parliament
(Your Address)
(Constituency Address) (date)
Dear (Insert Name)
Culpable Homicide (Scotland) Bill
I am writing to draw you attention to the above Private Members Bill lodged in the Scottish Parliament by Karen Gillon MSP for Clydesdale.
As one of your constituents it is of great concern to me that our society denies many Scottish citizens justice when they are faced with the loss of loved ones through no fault of their own.
It is inconceivable that our law of culpable cannot be applied consistently to and individuals and any organisations who, through their own reckless actions, cause the deaths of others.
Everyone expects that the most serious crimes in our society, murder and culpable homicide, should face rigorous investigation and prosecution. However in the case of the latter offence it has now been shown that big businesses and individual decision makers are, on the whole immune from prosecution.
It was expected that the Scottish Executive would act quickly to introduce legislation in the light of the Transco case as the Justice Minister, Cathy Jamieson originally promised.
However, we now find that the Home Office have decreed that the Home Office proposals will be extended to cover Scotland. I personally object to this course of action as I believe that any involuntary killing resulting from the action of others is a matter of Scottish criminal justice.
My fear is that allowing the Home Office to legislate on a matter of criminal justice undermines the role of the Scottish Parliament and members of the Scottish Parliament should be questioning the Home Office action.
Furthermore, I do not believe that the Corporate Manslaughter or, rather, Corporate Homicide legislation in Scotland will allow for organisation like Transco to be prosecuted for their failures in the future and this prospect should not be acceptable to and members of the Scottish Parliament.
I would therefore ask, as one of your constituents, that you lend your support to Karen Gillon’s proposals for a Private Members Bill and sign the Bill when it is lodged in mid September.
Yours sincerely
CULPABLE HOMICIDE (SCOTLAND) BILL - CONSULTATION PAPER SUMMARY RESPONSE