Scottish Trades Union Congress
Response to Proposals by Karen Gillon MSP to amend the law of Culpable Homicide
General
1.1
Do you have any comment to make on the need for legislation of this type as detailed in this paper to ensure equality across companies in relation to culpable homicide?
The STUC believes that reform of the law of Culpable Homicide is necessary following the collapse of the charges brought by the Crown Office against Transco following the deaths of a family of four in Larkhall in December 1999.
Despite an unacceptable number of work related fatalities in Scotland, including the Piper Alpha in 1988, not one company or individual director has been held to account following the deaths of workers or members of the public.
Despite the Crown Office taking the decision to prosecute, Transco successfully appealed the decision. The reason given by the Court of Appeal was that the prosecution had failed to identify the controlling mind or minds within the organisation who were acting on behalf of the company in committing the errors or omissions that led to the deaths.
This judgement clarified the situation relating to the prosecution of companies and made it clear that, as a result of the identification doctrine, it would be impossible to prosecute larger organisations for culpable homicide. These companies invariably have more complex structures and many layers of management and make identifying the controlling mind extremely difficult if not impossible.
While Transco was the first company to be charged with Culpable Homicide in Scotland this has not been the case in England and Wales. However, where charges of manslaughter have been brought by the Crown Prosecution Service any successful prosecutions have all been against directors of smaller companies.
This would tend to suggest that the law of Culpable Homicide in Scotland as it stands discriminates against smaller businesses making it more likely for them to be charged with such a serious offence as Culpable Homicide. The law should not be allowed to discriminate against any particular group of employers or individuals nor should it be seen to protecting others.
The STUC are not aware of any other area of law where discrimination of this kind is tolerated. It is therefore imperative that any new legislation brought forward in Scotland has to be seen to be fair, applying to all organisations irrespective of their size and complexity of their structures.
Families of those killed at work or, as in the Transco case, in their own homes deserve justice and that justice needs to be seen to be transparent and apply to the largest and smallest of organisations.
1.2
Do you have any comment to make on the proposals outlined that suggest that there be two different statutory kinds of culpable homicide – culpable homicide by causing death recklessly and by gross negligence?
The STUC welcomes the proposals for two new statutory offences of “culpable homicide by causing death recklessly” and of “culpable homicide by gross negligence”.
In the case of the first new proposed offence we believe it would allow for prosecutions, mainly of individuals, if they should have been aware of the risk of their actions but carry on regardless resulting in the death or deaths of others.
We would have been concerned, had this been the only proposal put forward, as there are clearly difficulties in ensuring this offence applies to organisations. However, the proposals for the second offence involving gross negligence would close the loopholes identified in the Transco case and this is an essential element for the STUC and our affiliated organisations.
1.3
Do you have any comment on the definition of organisations and office holders in section 8 and 9 of the Bill?
The STUC welcomes the broad and fully inclusive definition of an organisation outlined in Section 8 of the Bill and welcome the fact that this does not focus solely on incorporated bodies. As outlined in our response to question 1.1 we feel that this legislation needs to be seen to be transparent and not to discriminate against any particular group.
In order for this to happen it has to apply to all employing bodies, including government departments, partnerships and other non incorporated bodies. We welcome the provision to amend this definition as necessary.
Similarly in relation to the definition of an office holder we feel that the definition laid out in Section 9 properly reflects the way decisions are taken within organisations and does not seek to restrict the liability to any particular level of management. The STUC would have concerns that any such restrictive definition could result in a continuance of the controlling mind principle in another form and therefore welcome the broad definition of an office holder contained in this section.
1.4
Do you have any comment to make on the provisions of the Bill applying to Ministers, civil servants and Crown bodies in the same way as they apply to natural persons and organisations, as set out in sections 12 and 13 of the Bill?
The STUC believes that Crown immunity for prosecution should be removed again mainly for the reason given in our response to question 1.1. It is inconceivable that Crown employers including Scottish Ministers should be given immunity from prosecution when the purpose of this Bill is to ensure that any natural person or organisation, irrespective of size or status, whose actions lead to the death of an individual is accountable for their actions in a Court of Law.
Culpable homicide by causing death recklessly
2.1
Do you have any comment to make on the way that causing death recklessly is defined in paragraph 3.5 of the proposal and detailed in section 2 of the Bill?
The STUC welcomes the definition of causing death recklessly as it covers those that act deliberately and through this behaviour cause death. However it also covers those who may not be aware of the risk and consequences of their actions but should have been aware of these consequences.
This is based on the Draft Criminal Code for Scotland and is a model that the STUC feels clarifies the definition of reckless behaviour, through the use of an objective standard, ensuring that ignorance of potential risk to life is also punishable under the offence.
We also appreciate the difficulty of attributing liability for this offence to companies and recognise the importance of the additional offence that will close the loopholes in the current legislation.
2.2
Do you have any comment to make on the proposal that an organisation is made responsible for the actions of their employees for this offence (made vicariously liable) as proposed in Section 4 of the Bill?
The STUC is of the view that making organisations liable for the actions of their officers and employees can only serve to ensure that organisations and their directors or managers take personal responsibility for ensuring that organisations take the necessary precautions to meet their legal obligations to their workers and the public.
We accept the difficulties outlined in section 3.6 but do not believe that these concerns should prevent the inclusion of vicarious liability within the legislation.
It is clear that on some occasions the actions that led to a death may be as a result of the behaviour of a rogue manager rather than organisational failings. It may be that in such cases that it is not appropriate to attribute liability to the organisation. However, in other cases the lack of involvement or knowledge of their officer’s or employees actions may not be so clear cut and it would be for the legal process to decide on liability of the organisation.
The STUC believes it is important that organisations should be liable directly and personally for any failures in the way they are run that leads to the death any person. We do not believe that the purpose of giving organisations distinct personas was to allow them to evade justice. This offence in itself does not address the problem of direct liability of organisations although the STUC is aware that this concern is addressed in other parts of the proposed Bill.
2.3
Do you see any difficulties as to how aggregation as proposed in Section 4(2) of the Bill will work in practice?
The decision of the appeal Court in the Transco decision made it clear that the liability of different individuals over a period of time could not be aggregated and then attributed to the organisation.
We are of the view that the issues of aggregation require to be addressed and the inclusion of section 4 (2) will ensure that the Courts consider the aggregation of the actions of different individuals within the company, and at different times, when considering whether the offence has been committed.
We realise that, in practice, the issue of attributing liability through aggregation may well lead to instances where individuals may have acted in different ways and for varying reasons. We believe that this eventually will be off set by the increased responsibility placed on organisations to ensure that their officers and employees are fully aware of what is expected of them.
Culpable homicide by gross negligence
3.1
Do you have any comment to make on proposals set out in paragraph 3.7 to re-introduce culpable homicide by gross negligence into the law in Scotland?
The STUC is of the view that the re-introduction of this offence is imperative if it is to be possible to hold organisations directly liable for the offence of culpable homicide. We welcome the fact that there is no requirement to identify any responsible individual connected with the organisation or prove any mental element to the crime. The opportunity to make organisations vicariously liable for the actions of their officers is also welcome.
3.2
Do you have any comment to make on how these proposals are defined in section 5 of the Bill?
The STUC supports the concept of management failure being used as the basis on which liability can be attributed to the organisation.
We do not have a problem with the proposals being based on the Draft Corporate Manslaughter Bill but welcome the inclusion of a number of additional elements that again clarifies what is expected of organisations and their officers namely;
A duty of care being placed on organisations to organise its activities in a manner that will not cause harm to workers and members of the public. We welcome that this duty of care is placed on the organisation other than a “senior manager” or any other narrowly defined group of individuals.
The inclusion of a provision that allows the management failure to be viewed as the cause of death even although the immediate cause followed the failure by an individual. Trade unions believe that this will put an end to the corporate veil, a protection that has effectively rendered organisations immune from prosecution in Scotland following work related deaths.
3.3
Do you see any difficulties with what is proposed to define what is meant by that offence where it is committed by a natural person in section 3 and by an organisation in section 5 of the Bill?
One potential difficulty could well be that the natural person may not be in full possession of the facts regarding potential actions or behaviours that could be classified as a breach of their individual duty of care. However, in workplaces we see this as the employer’s responsibility to ensure policies and procedures are in place and training provided to make individuals at every level aware of what is expected. If employers take this responsibility seriously or, indeed are forced to do so, the net result will be that everyone knows what is expected of them.
The STUC supports the straight forward definition of the offence as it relates to organisations and through this simplicity avoids the potential difficulties of continuing the identification principle, in whatever shape or form, as we believe to be the danger in England and Wales.
3.4
Do you have any comment to make on the definitions of a duty of care and gross breach as proposed in section 6 and 7 of the Bill?
We support the broad definition of a duty of care and would be strongly against any restrictions being placed on the limit of an organisations breach of this duty of care.
We believe the definition of duty of care contained within the draft Bill will ensure that breaches of this duty will extend further than acts of negligence and could extend to other misdemeanours and transgressions.
We agree with the definition of gross breach in relation to the duty of care placed on individuals and organisations and welcome the fact that it applies equally to organisations and individuals.
3.5
Do you see any difficulties with the definitions of a duty of care and gross breach as proposed in sections 6 and 7 of the Bill?
The STUC do not envisage any difficulties in the definitions due to the non discriminatory nature of the definitions brought about by their simplicity.
Sanctions
4.1
Do you have any comment to make on the penalties detailed in section 11 of the Bill?
The STUC believes that those who are found to be criminally liable for the deaths of other individuals under the terms of the proposed Bill should be liable to an equivalent range of penalties, including terms of imprisonment as others convicted of involuntary killing elsewhere in our society.
Ideally, we would have preferred the sanctions on the organisations to be far wider reaching than unlimited fines but appreciate there are other opportunities to consider more innovative penalties that could potentially be imposed on organisations.
STUC September 2006