Shepherd and Wedderburn LLP
  November 2, 2006 - Scotland

Corporate Homicide Legislation
  by Ailsa Mapplebeck

The Corporate Manslaughter and Corporate Homicide Bill was introduced to Parliament on 20 July 2006. Westminster and the Scottish Executive have agreed corporate liability for death is a health and safety matter reserved to Westminster and therefore a UK wide Act is required. The Bill makes provision for a new offence to be called corporate manslaughter in England and Wales and corporate homicide in Scotland. Organisations will be guilty of the new offence where the way their activities are organised or managed by senior managers causes a person's death, and amounts to a gross breach of duty. The Bill represents an attempt to capture the overall culpability of an organisation rather than finding fault with particular individuals or junior management. The court will have to consider whether the organisation failed to comply with health and safety legislation relating to the breach of duty and whether this was encouraged by the organisation's attitudes or practices. The Bill does not amend existing health and safety legislation but is intended to encourage compliance. It provides for an unlimited fine on conviction and gives the courts the power to remedy the management failure that caused the death. It will apply to corporations, the police force and certain public bodies. The new offence is based on the English common law offence of gross negligence manslaughter. The Scottish equivalent, culpable homicide, is not constituted by a gross breach of duty. Rather it requires a person (or organisation) to have acted with a reckless disregard for consequences. As such, a statutory crime of corporate homicide will now be constituted through what is essentially the English doctrine of gross negligence manslaughter. Although this should provide consistency of approach for businesses operating in both jurisdictions, the introduction in Scotland of a statutory offence based on English common law is novel.


Footnotes:
Ailsa Mapplebeck is an associate specialising in corporate finance with law firm Shepherd and Wedderburn. +44(0) 141 566 7225