Reforming corporate homicide: reasons to be sceptical
In December of last year, Richard Baker MSP lodged a proposal for a Culpable Homicide (Scotland) Bill in the Scottish Parliament. What would this Bill do? It purports to (partially) put the law of culpable homicide on a statutory footing, but its intention is principally to reform the law relating to corporate liability for homicide. As the consultation paper explains:
“The intention of this proposed legislation is not only to create appropriate legal remedies for loss of life where the recklessness or gross negligence of employers is proved, but also to help foster a greater focus on health and safety in organisations and to reduce the numbers of lives lost at work in Scotland.”
These are unquestionably worthy aims. But can the proposal achieve them? In short, no. There are two major problems with the proposal.
Legislative competence. The consultation paper notes that the Scottish Government previously set up an Expert Group on Corporate Homicide, which reported in 2005, but that the Scottish Ministers did not introduce a Bill following on from that report. It does not say why this happened. The reason was that the Ministers concluded that any Bill would be outwith the competence of the Scottish Parliament, as it would relate to the reserved matter of health and safety (which would remain reserved under the Smith Commission’s proposals). It is difficult to see how this Bill is any different.
What difference would the Bill make? Even if the Scottish Parliament could enact this legislation, would it make much difference? Probably not. The Bill would allow a corporation to be convicted of culpable homicide “if the acts done by a number of different office holders at different times, when considered together, are sufficient to constitute” that offence (section 4(2)). The immediate problem with this is that it doesn’t seem to mean anything, because it doesn’t say what the test of “sufficiency” is. So how could a jury apply it?
A jury could, potentially, ask whether the corporation ought to have been aware of an obvious and serious risk of death (section 2), although that has difficulties itself (in what sense is a corporation “aware” of anything, other than by imputation, which the law already permits?). But this seems unlikely to go any further than the test already applicable under section 1 of the Corporate and Manslaughter and Corporate Homicide Act 2007, where a company is guilty of corporate homicide where it has caused a person’s death through “a gross breach of a relevant duty of care” owed to the deceased. The consultation paper gives no example of a case which would be culpable homicide under the test in the Bill but not be corporate homicide under the 2007 Act.
Does this mean the law is ok as it stands? No. Mr Baker’s consultation paper makes its argument by reference to three cases. The first two involved substantial fines under the Health and Safety at Work Act 1974. The consultation paper does not explain why prosecutions under the 1974 Act might be considered an inadequate response in such cases, but it is not difficult to imagine what case might be made. There is something unsatisfactory about the fact that a company can cause a death through a breach of health and safety legislation, and yet the offence of which it is convicted is not one of homicide, and does not even formally make the death part of the offence. Why do we have offences such as causing death by careless driving, or driving while uninsured, but not an offence of causing death by breach of a health and safety regulation? (Cf Peter Glazebrook, “A better way of convicting businesses of avoidable deaths and injuries?” (2002) 61 CLJ 405.) But any reform of this area of law would have to be for Westminster, not Holyrood.
A third case to which Mr Baker’s consultation paper refers is the 2009 crash of a Super Puma helicopter in the North Sea, where sixteen people were killed. In that case, a Fatal Accident Inquiry was held but no criminal proceedings followed. The consultation paper does not, however, explain how an offence of corporate homicide could have applied to that case. The FAI found only that it was possible that the accident might have been avoided if certain failures by Bond Offshore Helicopters had not occurred (see the findings at the end of the FAI determination). Conviction for an offence of homicide requires proof beyond reasonable doubt that the accused caused death. Possibility will not suffice. While it may be possible to prosecute such cases - if the necessary failure on the part of the corporation can be proven - as violations of health and safety law, a reformed offence of corporate homicide cannot apply.
The law of homicide in Scotland is certainly in need of reform generally, and it is disappointing that it no longer forms part of the Scottish Law Commission’s programme of work, having been abandoned as part of the recently announced Ninth Programme of Law Reform. But it is difficult to see how the proposals in this Bill would be within the legislative competence of the Scottish Parliament, or - even if they were - how they could make a practical difference if they were enacted.
This post is based on a response to Mr Baker’s consultation. The full text of that response can be downloaded here.