THOMPSONS SCOTLAND BRIEFING PAPER CORPORATE KILLING PART 1
COMPARISON BETWEEN SCOTTISH AND ENGLISH PROPOSALS
PART 2 COMPANY LINE AND RESPONSE
2 SCOTLAND ENGLAND Recklessness as basis of culpability Gross negligence as basis of · Looks at what the employer knew culpability and ought to have known · The definition is extremely · Important as imposes object complicated and confused. It standard making it more difficult doesn't seem to add anything to for the employer to get off the the existing law hook
Senior Managers · The term is just as confused as Management failure · This is not restricted to Senior "controlling mind" used in the common law. Managers or even Senior · It ignores the reality of the way Management. It is simply management at an appropriate companies are organised. · It will allow companies to level which properly reflects the reality of the way companies organise themselves deliberately operate to avoid culpability.
Switch of onus of Proof There is no comparison in the English Legislation · The group propose that the onus of Proof should shift to the employers to prove a defence if a primary breach is established. Employers are far more readily able to put their hands onto evidence which will establish recklessness or a lack of recklessness than any organisation, including the Crown Prosecution Service, attempting to build a case.
3
Individual Directors Offence There is no individual Directors' offence in the English Legislation · Despite companies having a separate legal personality from those who run them the reality is that it is Directors who have the power to ensure that companies meet their duties to health and safety and it is the conduct of Directors on a strategic level which leads to the death of workers. Accordingly, to focus those Directors' mind in a way that an offence against the company alone cannot do it was considered a corner stone of the proposals that there be an individual Directors' offence carrying with it the possibility of imprisonment. Some say culpable homicide already serves this purpose but no Director of a Scottish company has ever been found guilty of culpable homicide.
Director / Managers offence of making There is no comparison in the English Legislation a significant contribution to the death
· This is required for all of the reasons discussed above.
All employers are covered by the The English Legislation only covers companies incorporated under the Scottish legislation Companies Act · The proposals cover Partnerships, · It does not cover partnerships etc charities, friendly societies and anybody else who employs workers.
4 The English Legislation does not apply Extra territorial affect to the conduct of companies abroad · The Scottish proposals extend to offences committed by Scottish companies abroad. It is very important in terms of political will and also on a practical level given our North Sea industry.
The English proposals partly remove Crown Immunity Crown Immunity · The Scottish proposals remove · Interestingly decisions at a completely the anachronistic strategic (dare we say at concept of Crown Immunity Ministerial level) continue to attract Crown Immunity. Why should Crown Immunity persist in the 21st Century?
Penalties Penalties
· The English legislation only · The Scottish proposals include a provides for fines. very wide range of interesting, · This is very inflexible and tends and hopefully very effective penalties including equity fines, to result in some companies corporate probation, corporate receiving fines which are patently health and safety administrators, too light while other companies corporate community service receive fines which threaten the orders and in appropriate security of employment for their circumstances imprisonment. workers. · This gives the court flexibility to achieve a just outcome: Very bad employers will be seriously punished; others may simply require guidance or education; and security of employment can always be given proper consideration.
5
COMPANY LINE ON SCOTTISH PROPOSALS FOR CORPORATE KILLING
RESPONSE THE COMPANY LINE
Scotland and England should be the same
· Uniformity is a good thing. · Two bad laws do not make a good · It is unfair to have a law in one. If England's law is inadequate why should a law in Scotland different from the law in Scotland also be inadequate. England · It is up to England and Wales · It will lead to confusion regarding a law which they require. If they wish to have regard to proposals in Scotland so much the better · Scots criminal law is different from England's anyway (see the very pertinent example of corporate manslaughter for England and Wales and culpable homicide for Scotland). There are many other examples in criminal law. No one ever complains it should be the same. · Our criminal court and appeal system is different. The highest Court of Appeal is in Scotland · There are many other examples of Scots Law being different right across the board including insolvency, family law, property law, commercial law etc. · Our education health and transport are different. · Why do we have a Scottish Parliament if it was not envisaged that there would be different legislation in accordance with the wishes of the Scottish people.
6 Flight of Capital
· This is the usual scaremongering · Companies will be afraid to come · It has been put forward on a to Scotland and will go elsewhere. number of occasions eg minimum wage. · The scare stories did not happen · If it is envisaged that a company will not come to Scotland because they may be prosecuted for culpable homicide and thus contemplating such conduct then we do not want them anyway. · Hard to believe that a good company would come to its investment decisions with such a factor in mind.
Health & Safety Legislation is sufficient · Current health and safety · We have good health and safety legislation has been around for at legislation and that should be least 12 and in some cases 15 used instead years. · It has had little impact on reducing the statistics in Scotland · The Government launch of "Revitalising Health & Safety" in 2000 which based its initiatives on this legislation and other tactics such as embarrassment, encouragement etc has failed. The alarming statistics continue and even get worse. · The courts have declared such health and safety legislation as only regulatory. It does not carry the true recognition that conduct of a company or a director can be criminal
7 Individual Directors
· A general complaint · If an individual director's reckless conduct causes an employee to be killed why should they not be prosecuted. No one else would get off with such conduct.
Penalties
· This will hammer companies and · More scaremongering · Flexibility of penalties in fact cause them a variety of problems · Who will pay for it? may assist the company to improve its health and safety · Concentrating solely on fines would be trying to make one size fit all. It would not have rehabilitive or improvement measures · It may not be appropriate that a fine should be passed on to the customer but should be met by the shareholders who are ultimately responsible for the company · The court can have consideration to the viability of the company and the effect on employees if there was a large fine and instead give other measures as envisaged by the Scottish proposals · Such measures may cost less then the fine!