Rosepark Nursing Home fire: Blaze victims failed by a legal loophole

Published on 23/05/2009 18:58

RELATIVES of the victims of a nursing home fire which killed 14 last night hit out after one of Scotland's most senior law officers admitted they had been let down by the legal system.

Frank Mulholland, Solicitor General for Scotland, told Scotland on Sunday that families whose elderly relatives died in the Rosepark Nursing Home fire were "right to feel let down" because of a loophole in the law. He spoke following the collapse of the case against the care home's owners last week.

Fourteen elderly residents died when a blaze ripped through the nursing home in Uddingston, Lanarkshire, in January 2004.

Last week, owners Thomas and Anne Balmer, and their son Alan saw 17 charges against them relating to health and safety breaches dismissed at the High Court in Glasgow on a legal technicality.

The Balmers' partnership, which ran the Rosepark Nursing Home, was dissolved 18 months after the fire, which meant they cannot be prosecuted.

Instead, a Fatal Accident Inquiry will now take place, which can make recommendations but cannot hold anyone legally to blame.

The Balmers had previously been due to stand trial over alleged safety breaches at Rosepark Care Home but a judge dismissed the charges over a legal technicality in 2007.

Prosecutors launched a challenge but in July 2008 the Appeal Court refused the Crown's appeal against the decision.

A fresh indictment was then served on the Balmers last September.

Yesterday, Mulholland admitted the Crown Office had known it might not succeed in its attempt to bring the Balmers to trial, but said it had tried to do so in the public interest, despite the fact it meant the families had to endure a five-year wait to hear what happened on the night of the fire.

He said: "It must be terrible for them, and terribly frustrating and my heart goes out to them. I think the legal system has let the families down and evidence that in our view should be considered by a judge can't be heard before a judge. That's very frustrating.

"The families are right to feel let down by the law. We have got to fix it so that if this happens again in the future, what the families are going through will not happen again."

The case threw up a legal loophole that means a company partnership cannot be charged with breaches of health and safety if it is dissolved after the incident.

Mulholland added: "I don't regret in any way having tried to do this. We knew there was no guarantee we would win, but thought it was in the public interest. We knew there was a problem as it had not been done before and we were trying to find a way to do it."

The Balmers could have been jailed for two years each if they had been convicted. At the time of the fire, the three Balmers were partners in the business but in February 2005, the partnership was wound up. The next day, the limited company, Balmer Care Homes, was formed.

The elderly residents who died were: Dorothy McWee, 98, Tom Cook, 95, Isobel MacLachlan, 93, Julia McRoberts, 90, Annie Thompson and Helen Crawford, both 84, Margaret Lappin, 83, May Mullen, Helen Milne, Anna Stirrat, and Mary McKenner, all 82, Robina Burns, 89, Isabella MacLeod, 75, and Margaret Gow, 84.

John Lappin, whose mother Margaret died said last night: "I do feel let down by the legal system. If someone's behaviour causes deaths, you would think they would need to answer for it.

"The firm existed at the time and it's still the same people. They have used a technicality but that does not help me any, or any of the families. When I think of my mother alone in that place dying the way she did, a double amputee, it has brought it all back.

"It has been over five years without any real answers to what happened, why it happened and who was responsible. I was looking to see an end to this, it has been too long. Fourteen people died and sometimes you feel no-one is really interested in why they died. They are talking about points of law and technicalities.

"Would it have been different if it had been young people? The longer you have your parents the more they mean to you, they become more precious. But sometimes when it's old people nobody seems to care too much. It's answers we are entitled to."

Legal experts from the Scottish Government are now attempting to close the loophole, but that will involve the Westminster government, as some parts of the law are reserved.

It could be months or years before the law is amended.

Labour MSP for Hamilton North and Bellshill Michael McMahon said he was "unhappy" that there would be no criminal proceedings.

He also said he disagreed with Mulholland's version of events, saying he remembered how "frantic" his Labour colleagues in the Scottish Executive, and Crown Office staff, had been when the first attempt to bring a trial against the Balmers collapsed.

He said: "My recollection of the time the first case collapsed was that they had to firefight to deal with it. It was frantic. If they had expected it to collapse, they would have been much more sanguine about it at the time. I don't buy it, and those close to the investigation at the time are of the same opinion."

He added: "I was angry that justice had been denied at the time the case collapsed and now I am even more angry that the Crown Office deliberately pursued a course that they knew was doomed."