A member of the Scottish Parliament has introduced a member’s bill which aims to make it easier to hold large companies and their senior managers liable for workplace fatalities.
The proposed legislation would change the law in Scotland by creating two new offences – causing the death of a person recklessly, or by gross negligence.
Both offences could be committed either by individuals or by organisations and are in addition to the existing law on culpable homicide.
The primary purpose of bill, put forward by Mid Scotland and Fife MSP Claire Baker, is to remove difficulties in current corporate homicide legislation which make it hard to apply it to different sizes and types of organisation.
Its provisions mean that a senior manager could be convicted of culpable homicide if that person is held responsible for causing a death “recklessly or by gross negligence”.
For organisations, the recklessness offence is committed where a person, or a number of people when considered together, recklessly cause death while acting within the scope of their employment or on behalf of the organisation.
The gross negligence offence occurs where acts or omissions of a person or organisation amount to a “gross breach of a duty of care”.
Katherine Metcalfe, a Legal Director and specialist health and safety lawyer at Pinsent Masons, said: “Attempts to reform the law in this area are not new. The 2007 Corporate Manslaughter and Corporate Homicide Act (CMCHA) was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster, the Kings Cross station fire and the sinking of P&O Ferries’ ship the Herald of Free Enterprise.
“The CMCHA provided that an organisation could be guilty of corporate manslaughter or, in Scotland, corporate homicide, where it could be shown that the way in which its activities were managed or organised caused a person’s death, and amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased.
To date there have been no prosecutions for corporate homicide in Scotland. In other parts of the UK, the majority of organisations convicted of corporate manslaughter have not been large or complex.
Under the terms of Claire Baker’s bill, an individual will be guilty of causing death recklessly where the person is, or ought to be, aware of an obvious and serious risk that acting will bring about death, but nonetheless acts where no reasonable person would do so.
An organisation will be vicariously viable for that offence if a “responsible person” is guilty of the offence and was acting within the scope of their employment or on behalf of the organisation in doing the acts constituting the offence.
The Baker bill provides that death by gross negligence will occur where an individual or organisation acts in such a way as to amount to a gross breach of a duty of care owed by that individual or organisation to another person and that breach causes the death of that other person.
A gross breach is defined as conduct falling far below what can reasonably be expected of the individual or an organisation.
A breach of duty of care by a non-natural person may be regarded as the cause of a person’s death despite the immediate cause of death being the act or omission of a natural person.
The Baker bill also provides that a responsible person is guilty of being art and part of culpable homicide “where the responsible person’s conduct forms part of the acts constituting the offence”.
However, Ms Metcalfe warned the Baker bill as currently drafted could introduce new confusion into the way corporate responsibility for workplace fatalities is assessed, by broadening current narrow requirements too far.
Ms Metcalfe added: “Baker’s bill will require some fine tuning and care to ensure that, if passed, the proposed legislation is fit for its purpose.”
Claire Baker said: “The aim of my proposed Culpable Homicide (Scotland) Bill is to ensure that where loss of life is caused by the recklessness or gross negligence of individuals, companies or organisations that, where proved, the wrongdoer can be convicted of the offence that reflects the appropriate seriousness and moral opprobrium of what occurred.”
The bill will now be subject to the same three stage scrutiny process as other public bills, although constraints on parliamentary time as a result of Covid-19 mean there can be no guarantees on progress.