Articles by McGrigors
18 April 2005
Soap Box
by Laura Cameron
(Published The Herald)
The prospect of Scotland leading the way on the introduction of an offence of corporate killing has been dealt a serious blow following Cathy Jamieson's announcement that the proposal in Scotland will be put on hold.
The justice minister plans to set up an expert group to consider the issue before recommending changes to the law. This is in stark contrast to her counterparts at Westminster, who appear to be determined to push ahead with their proposals with some conviction.
Charles Clarke, home secretary, has published a draft bill for England and Wales, though it must be said the government has hardly acted with any great speed, given that the first consultation paper was issued nine years ago.
South of the border, it is proposed to create an offence of corporate manslaughter when a death has occurred at work because the senior management of a corporation has grossly failed to take reasonable care for the safety of employees or others.
It is clear - very clear - that the courts should anticipate a flurry of activity on the interpretation of that provision. The draft bill is presented for consultation, with responses required by June 17 this year.
The apparent reluctance to grasp the nettle in Scotland is surprising, to say the least. Two years ago, the High Court threw out a charge of culpable homicide against Transco following the Larkhall gas explosion, which killed a family of four in 1999.
No one particular "controlling mind" could be identified - a pre-requisite for such a charge.
A great hullabaloo followed this decision, with calls for the Scottish Parliament to steal a march on Westminster and take action immediately to plug an apparent gap in the law. Is there a gap? As the law presently stands, corporations can already face unlimited fines under health and safety legislation when prosecuted in the higher courts of the UK.
There will be no change in the penalty imposed as a result of these proposals. The real distinction is in name only. Much reliance is placed on the fact that organisations would not relish the prospect of being branded "corporate killers".
The reputational issues associated with such a badge cannot be under-estimated. That risk is, by far, the biggest driver for industry today to collectively "pull their socks up" in terms of health and safety compliance.
That being said, a recent case from the Court of Session could have serious consequences for those who find themselves on the wrong end of a health and safety investigation. Almost a year on from the Stockline Plastics factory explosion in Maryhill, Glasgow, the Health & Safety Executive and the Crown are still in the throes of the investigation into the circumstances of the explosion. Nine people lost their lives and 40 others were very seriously injured.
As yet no decision has been made on whether a criminal prosecution will be instigated.
Despite the passage of time, the owners of the factory have not had access to, never mind recovered, their property and assets from the investigating team of lawyers and experts. They petitioned the court to seek an order to allow them access to inspect their property.
They argued that this was necessary with a view to allowing them to deal with the personal injury claims pending. In total there are 1385 logged productions including fire ovens, liquid petroleum gas tanks from the yard, and associated pipework and fittings.
The factory owners argued that under human rights legislation they had a right to peaceably enjoy their property. Lord McEwan decided that the Crown was entitled to hold the assets to investigate the circumstances fully. The judge was at pains to point out that he was not saying that the Crown could retain the items indefinitely, but rather that there will come a time when the owners will have to get access or be told that there is going to be a prosecution.
Lack of access or possession may not have significant consequences on the business but that will not always be the case. Reputational issues may be one fear of the large organisation, but from a more practical point of view, its inability to continue with its business could be far more serious.
Health and safety law has been developing rapidly over
the past few years. The so-called "Kill Bill" may yet turn out
not to be the biggest issue for organisations.
Laura Cameron is a partner in the commercial litigation team at McGrigors
For further information please contact:
commercialligitigation@mcgrigors.com
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