CCA Conference on CORPORATE KILLING LEGAL DEVELOPMENTS IN SCOTLAND

LEGAL DEVELOPMENTS IN SCOTLAND UK Law – Health and Safety at Work etc. Act 1974 Health and safety reserved (to Westminster Parliament) by Scotland Act 1998 Schedule 5

LEGAL DEVELOPMENTS IN SCOTLAND Scots Law - culpable homicide Criminal Law devolved (to Scottish Parliament) by Scotland Act 1998 Schedule 5

LEGAL DEVELOPMENTS IN SCOTLAND Culpable homicide “Lawful act culpable homicide” Transco plc v HM Adv SLT 41

LEGAL DEVELOPMENTS IN SCOTLAND Mens rea of culpable 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 quoted in Transco v HMAdv 2004 SLT 41)

LEGAL DEVELOPMENTS IN SCOTLAND “utter disregard of what the consequences of the act in question may be so far as the public are concerned”; “recklessness so high as to involve an indifference to the consequences for the public generally” (Quinn v Cunningham 1956 JC 22 quoted in Transco v HM Adv 2004 SLT 41)

LEGAL DEVELOPMENTS IN SCOTLAND Scottish mens rea Dole Objective: do the actions of the accused demonstrate an indifference/disregard

LEGAL DEVELOPMENTS IN SCOTLAND Prosecution of company for common law crime Dean v John Menzies (Holdings) Ltd 1981 JC 23 (shameless indecency) Purcell Meats (Scotland) Ltd v McLeod 1986 SCCR 672 (attempted fraud)

LEGAL DEVELOPMENTS IN SCOTLAND Transco plc v HM Adv SLT 41 (culpable homicide) Prosecution of company for culpable homicide competent

LEGAL DEVELOPMENTS IN SCOTLAND Controlling mind theory Purcell Meats (Scotland) Ltd v McLeod Transco plc v HM Adv.

LEGAL DEVELOPMENTS IN SCOTLAND Transco plc v HM Adv. What the Crown argued What the trial judge decided

LEGAL DEVELOPMENTS IN SCOTLAND What the Appeal Court said The controlling mind test applies (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 applied)

LEGAL DEVELOPMENTS IN SCOTLAND Each element of the crime must be proved against the same controlling mind “Aggregation” of controlling minds is impermissible

LEGAL DEVELOPMENTS IN SCOTLAND The controlling mind may be a committee as well as an individual (Lord Hamilton) If the controlling mind in question is a committee, each element of the crime must be proved against it as composed of the same individuals (Lord Hamilton)

LEGAL DEVELOPMENTS IN SCOTLAND Law reform in Scotland Position of Scottish Executive

LEGAL DEVELOPMENTS IN SCOTLAND Alternatives for reform Home Office proposals Draft Criminal Code for Scotland (

LEGAL DEVELOPMENTS IN SCOTLAND cl.16(1) A legal person is guilty of an offence if an office holder is guilty of the offence and was acting within the scope of the office or on behalf of the legal person in doing the acts constituting the offence or giving rise to liability for the offence. (2) A person who, as an office holder of a legal person, is responsible for any action which amounts to, or leads to, the commission of an offence by the legal person or any of its employees or agents, is guilty of that offence unless the consequences of the action could not reasonably have been foreseen.

LEGAL DEVELOPMENTS IN SCOTLAND cl.16(3) This section does not limit the effect of any other provision of this Act or of any other enactment which imposes criminal liability on a legal person (whether in terms or by using the word “person” without qualification) or on an office holder of a legal person. (4) In this section (a) “action” includes any decision, policy, practice or course of conduct;

LEGAL DEVELOPMENTS IN SCOTLAND (b) “legal person” means any body or entity (such as a company or partnership) which has a separate legal personality, but does not include an individual human being; (c) “office holder” means a person participating in the control of the legal person as a director, manager, partner or holder of a similar office or position; (d) a person is responsible for an action not only if the person is directly responsible for it but also if the action is attributable to the person’s neglect or if the person connived in or consented to it.

LEGAL DEVELOPMENTS IN SCOTLAND Corporate killing or general reform Controlling mind or management failure Accountability