James Varney

While the differences between Scots law and English law run deep – from the origins of some of our rules in Roman law compared with the mainly common law heritage south of the border – one of the most obvious variations between the two systems is the different words used for the same, or similar, crimes. The English have ‘arson’, we have ‘fire-raising’; they have ‘burglary’, we have ‘house-breaking’; they have ‘manslaughter’, we have ‘culpable homicide’.

It may not be a term that’s in common usage, but few crimes are as serious as culpable homicide. A murder may have been committed in Scotland where the perpetrator intended to kill or was wickedly reckless. Where death is caused without such specific intention or wicked recklessness, a conviction for culpable homicide may follow.

A successful prosecution of an individual for culpable homicide operates on long-standing and fairly well-established lines in Scotland. Yet when it comes to convicting a company or organisation of culpable homicide, the lines are not nearly as clear-cut at present. While convictions are regularly secured for breaches of health and safety legislation generally, convicting a company or organisation of culpable homicide is seen to be much harder. The Corporate Manslaughter and Corporate Homicide Act 2007 was brought into force UK-wide to address these matters but some consider that that legislation does not go far enough to provide fully effective and workable law in this area.

One of the stumbling blocks is reported to be in identifying the “controlling mind” within a company or organisation. While the board of directors may be the ultimate decision-making body, the day-to-day operations are usually, in medium to large organisations at least, carried out by managers using powers delegated from the board. Directors may be responsible for high-level decision-making but they may not know of, nor have practical control over, the incidental decisions taken by managers below them in the chain of command.

A Member’s Bill being proposed for the Scottish Parliament aims to bring greater precision to Scots law in this area. Claire Baker MSP has launched a consultation on a proposed Culpable Homicide (Scotland) Bill that would create two kinds of statutory culpable homicide – where death is caused “recklessly” or by “gross negligence”.

“My proposed legislation would introduce appropriate legal remedies for loss of life where the recklessness or gross negligence of employers, businesses or corporations is proved,” explains Baker in the foreword to the consultation paper. “Critically, it would also provide a greater focus on health and safety in organisations and in the workplace, supporting a reduction in fatalities, and changing the culture in Scotland for the better.”

This focus on improving health and safety at work is the key factor in Baker’s proposal. She points to Scotland’s record, which shows there are 17 work-related deaths on average each year, meaning a worker in Scotland is more likely to be killed in their job than a worker in England.

Baker also wants the families of those killed to receive justice. She feels culpable homicide convictions – and appropriate sentences – would recognise the severity of the crimes committed.

Baker’s proposed offences would be in addition to the existing offences under common law, rather than acting as a substitution for those. The definitions of “recklessness” and “gross negligence” should, Baker contends, follow those under the draft Scottish Criminal Code.

Baker further proposes that “duty of care” should be defined in the legislation “to make it clear employers’ responsibility to employees in this context”. The phrase “duty of care” is a well-known and fundamental part of civil law but is not one traditionally associated with criminal law.

“I also propose enabling the courts to ‘aggregate’ the actions of different officeholders at different times,” adds Baker. “This provision is not in the Code, but I am convinced it is important that it be included to clarify liability of an organisation when an incident is the result of actions over a number of years.”

The consultation on Baker’s proposed Bill closes on 15 February 2019. Companies and their insurers will be keeping a close look-out for reactions to the proposals from ministers, other MSPs and the wider legal and business community to study whether the proposal will receive backing and whether it might begin progressing through Holyrood.

James Varney is a partner at BLM