Updating Scots law is a matter of life and death

Published on Thursday 26 May 2005 12:09

CORPORATE killing must be pushed higher up the business and Scottish Executive agendas. The £900,000 fine imposed recently on Shell for safety failings which resulted in a double fatality on its Brent Bravo platform is a record for such an incident.

It is also the latest in a spate of headline-grabbing disasters which have fuelled ongoing debate about whether the existing law adequately punishes corporations and key executives for workplace deaths caused as a result of management failure.

In addition to high-profile tragedies such as this, around 230 people are killed annually in the UK in workplace accidents, not to mention the estimated 3000 who die from asbestos-related disease and the 1000 killed while driving as part of their job or to and from work.

Spurred on by such statistics, but after much deliberation, a draft corporate manslaughter Bill was introduced by the Government at the end of March. However, the Bill only applies to England and Wales.

While the Executive was expected to move swiftly to progress its own "corporate killing" legislation, it instead announced it was no longer holding its promised public consultation on the issue. Rather, it has set up an "expert working group" to report back to Justice Minister Cathy Jamieson.

The result of this move is further delay, uncertainty and a potential anomaly between the laws of Scotland and England.

As the law currently stands, it is virtually impossible for a corporate manslaughter or culpable homicide prosecution to succeed against any company, other than a tiny one. The reason is that, to be successful, the prosecution must prove the identity of the "directing mind" of the company and attribute the failing to that named individual.

The difficulties with the law were forcibly highlighted most recently by the widely-publicised case against Transco for the culpable homicide of a family of four, killed in a gas explosion at their Larkhall home.

The collapse of this culpable homicide prosecution has profound implications for future cases, such as any which might arise from the ICL factory explosion in Glasgow, which killed nine workers.

Cases such as Transco strongly indicate the existing common law of corporate culpable homicide - and manslaughter in England - is wholly inadequate.

Paradoxically, this is not the case with the provisions of the Health and Safety at Work Act 1974 (HSWA). As well as being versatile and withstanding the test of time, the maximum sentencing powers - namely an unlimited fine - are exactly the same as those proposed under the Bill.

In addition, Shell’s recent record-breaking fine provides the clearest indication that the courts in Scotland are prepared to fine heavily.

The range of individuals and organisations successfully prosecuted under HSWA includes architects, safety consultants, teachers, local authorities, companies of all sizes and even the Environment Agency.

Nevertheless, there is no doubt that a conviction for some form of statutory homicide will attract a far greater stigma than one under the HSWA. The ultimate question is whether this is enough of a deterrent to drive health and safety up the corporate agenda?

As the expert working group in Scotland considers this complex area of law, it is clear the existing common law of corporate culpable homicide or manslaughter in health and safety cases is totally inadequate for prosecutors looking to secure a conviction.

At the same time, there is a need to end the embarrassing sequence of high-profile prosecutions which have collapsed, such as the Herald of Free Enterprise, Great Western Trains and, most recently, Barrow County Council.

In an area of law where fatalities are involved, it is vital the treatment meted out in Scotland and England is identical, especially as the HSWA provisions are exactly the same on both sides of the Border.

David Leckie is a partner specialising in health and safety law with legal firm Maclay Murray & Spens