Shepherd and Wedderburn LLP
  February 2, 2005 - Scotland

Time for the Kill Bill?
  by Catherine Tracey

In November the UK government bowed to pressure from unions and bereaved relatives and announced its intention to produce a draft bill on corporate killing for England and Wales. This bill, if successful, would have enabled companies to be prosecuted for management failures that resulted in a person's death. No such government bill has however, been forthcoming. Nor is it likely that any such government bill will appear before the 2005 general election. Instead, corporate killing has secured its place on the political agenda by the introduction on 12 January 2005 of a private member's bill by Stephen Hepburn MP. Mr Hepburn's Health and Safety (Directors' Duties) Bill, proposes that in cases of serious health and safety breaches or negligence resulting in death, companies would be faced not just with the possibility of an unlimited fine (as is the case under current health and safety legislation), but directors could be imprisoned. Lack of parliamentary time before the next general election, together with lack of parliamentary support will almost certainly ensure the bill's failure. Proponents of the bill hope, however, that any progress it makes now will help to speed the passage of similar legislation in the next session. But the bill is not just of relevance for England and Wales. It is also pertinent for Scotland. The Scottish Executive has used the bill in inform its own proposed consultation exercise on corporate homicide which is scheduled to take place in early 2005. Although this consultation is still being drafted, the Executive has already decided to use the bill to lift Crown immunity from prosecution, which would mean public bodies and government agencies could be liable for criminal prosecution. The issue in both England and Scotland thus far has been the difficulty of pinning charges of corporate manslaughter (England and Wales) and corporate homicide (Scotland) on companies. At present, businesses can only be convicted if it can be shown that negligence by a senior manager - or "controlling mind" - was to blame. This means that large companies, where lines of responsibility are harder to establish, usually escape prosecution. In England and Wales, only five companies - all of them small businesses - have been found guilty of manslaughter. In Scotland meanwhile, no companies have been found guilty of culpable homicide. The only other way of penalising firms responsible for fatal accidents is to fine them under health and safety rules. In September 2004 a court dismissed corporate manslaughter charges against Railtrack, together with charges for breaches of health and safety legislation against former senior rail executives over the Hatfield rail crash of October 2000, which killed four people and injured dozens. However campaigners were not prepared to let the matter drop and a new trial began in January of this year, with track managers from Balfour Beatty and Network Rail appearing in court to face manslaughter charges. The trial is expected to last up to a year. Progress on changes to corporate killing legislation remains slow – but it also remains steady. Irrespective of the success of the Private Member's Bill, this is one issue that will not go away.


Footnotes:
Catherine Tracey is a solicitor specialising in public law with commercial law firm Shepherd+ Wedderburn 44 (0)131 473 5474