“Safety and Corporate Criminal Accountability in Scotland”

JENIFER ROSS The Law School, University of Strathclyde Centre for Corporate Accountability Conference on Safety and Corporate Criminal Accountability: 23 October 2003 The Law of Homicide and its application to work related deaths

THE LAW OF HOMICIDE Criminal homicide: murder and culpable homicide Culpable homicide Corporate culpable homicide

THE LAW OF HOMICIDE Culpable homicide: actus reus Destruction of life Criminal responsibility for failure to take care Causation of death

THE LAW OF HOMICIDE Culpable homicide: three types (Mitigated murder) (“Unlawful act culpable homicide”) “Lawful act culpable homicide”

THE LAW OF HOMICIDE Lawful act culpable homicide Causing death while carrying on lawful business Even if in unlawful manner.e.g in breach of health and safety legislation

THE LAW OF HOMICIDE Lawful act culpable homicide: mens rea Proof of recklessness Proof of gross negligence

THE LAW OF HOMICIDE “It is now necessary to show gross or wicked or criminal negligence, something amounting to, or at any rate analogous to, a criminal indifference as to consequences” Paton v HMAdv 1936 JC 19)

THE LAW OF HOMICIDE “The recklessness is not the high degree of wicked recklessness that is required for murder but can be constituted by acting in the face of obvious risks which were or should have been appreciated and guarded against or in circumstances which show a complete disregard for any potential dangers which might arise from actings.” (Sutherland v HMAdv 1994 SCCR 80)

THE LAW OF HOMICIDE “The quality of the accused’s driving was such as to show a complete disregard for any potential dangers which might result, a complete disregard of what the consequences of driving might be so far as the public are concerned.” (McDowall v HM Adv JC 194)

THE LAW OF HOMICIDE Gross negligence or recklessness? Breach of duty “..doing an ordinary act in a reckless way”

THE LAW OF HOMICIDE Scottish mens rea Dole Objective: do the actions of the accused demonstrate an indifference/disregard …(in the absence of an explanation)

CORPORATE CULPABLE HOMICIDE Prosecution of company for common law crime Dean v John Menzies (Holdings) Ltd 1981 JC 23 (shameless indecency) Purcell Meats (Scotland) Ltd 1981 JC 23 (attempted fraud)

CORPORATE CULPABLE HOMICIDE Competent to prosecute company for culpable homicide C.f England: P&O Cases R v HM Coroner of East Kent ex parte Spooner (1989) 88 Cr. App. R. 10 R v Alcindor & others (1990)

CORPORATE CULPABLE HOMICIDE Adoption of “controlling mind” doctrine of attribution Purcell Meats (Scotland) Ltd v McLeod Tesco Supermarkets Ltd v Nattrass [1972] AC 153

CORPORATE CULPABLE HOMICIDE Controlling mind Tesco Supermarkets Ltd v Nattrass “..the board of directors, the managing director and perhaps other superior officers.. Who carry out the functions of management and speak and act as the company” (Lord Reid)

CORPORATE CULPABLE HOMICIDE “… in actual control of the operations of a company or of part of them and who is not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders” (Viscount Dilhorne)

CORPORATE CULPABLE HOMICIDE “..who by memorandum and articles of association or as a result of action taken by the directors or by the company in general meeting pursuant to the articles are entrusted with the exercise of the powers of the company” (Lord Diplock)

CORPORATE CULPABLE HOMICIDE Application of controlling mind doctrine Identification with an individual who is (one of) the controlling mind(s) Rejection of “aggregation”

CORPORATE CULPABLE HOMICIDE P & O Cases Attorney General’s Reference No 2 of 1999 [2000] IRLR 417 Difficulty of attribution with large/complex organisations

CORPORATE CULPABLE HOMICIDE Prosecution of company for work-related death Gross negligence/recklessness Breach of duty

CORPORATE CULPABLE HOMICIDE Existence of duty Breach of duty Breach so serious, having regard to the risk and the conduct of the accused, that it can be characterised as gross negligence, displaying criminal indifference to consequences Causal link between failure and death

CORPORATE CULPABLE HOMICIDE Corporate liability through the controlling mind “Narrow view”: one individual person who is a controlling mind must be responsible for all elements of crime

CORPORATE CULPABLE HOMICIDE Corporate liability through the controlling mind “Broad view”: controlling mind/s must be responsible for elements of crime Cf aggregation

“Safety and Corporate Criminal Accountability in Scotland”