Shepherd and Wedderburn LLP
  May 9, 2005 - Scotland

Could you explain in what circumstances the proposed new offense of corporate manslaughter might be committed?
  by Ailsa Mapplebeck

Under the current law, for an organisation to be liable for a fatality the 'identification' principle must apply. This first requires an individual to be personally guilty of the wrongdoing. This individual must then be identified as the "controlling mind" of the company. There are several problems with the current system. It is often impossible to identify the "controlling mind" behind the decision which results in the death. In modern corporate life the decision-making process is sometimes complex and often shared by a lot of people. From a number of attempted prosecutions, only a handful, involving small companies, have resulted in conviction. In consequence, large corporations have found themselves free from prosecution simply because a guilty individual cannot be identified. The draft Bill seeks to replace the 'identification' principle with the idea of "management failure". Under new legislation, the court will consider the actions of the senior decision-makers as a whole. This raises the question of who will be considered a senior decision-maker. The proposed - and somewhat vague - answer is a person who has a significant influence in the decision-making processes of an organisation. Where the actions of an organisation involve a breach of health and safety legislation, the court may also consider the seriousness of the failure to comply, an organisation's awareness of its breach and whether it intended to profit . Government departments could also be held accountable in the same way as corporate bodies. Furthermore, it is the organisation itself which may be held liable and face an unlimited fine. The Bill relates to offences committed in England and Wales. An expert group has been appointed in Scotland to report on corporate culpable homicide.


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