A Scots lawyer says a new Holyrood bill designed to make it easier to hold large companies and their senior managers liable for workplace fatalities represents a ‘substantial broadening’ of culpability.
Claire Baker MSP introduced the Culpable Homicide (Scotland) Bill 2020 on 1 June. Tony McGlennan, legal director at Addleshaw Goddard, believes that the term ‘responsible person’ will now have a much broader application following no prosecutions under the previous legislation in over a decade.
The new bill seeks to create a statutory offence of culpable homicide arising where death is caused recklessly or by gross negligence. Both offences could be committed either by individuals or by organisations. It is hoped the bill will reduce complexities in current corporate homicide legislation, which make it difficult to apply to different sizes and types of organisations.
McGlennan said, “The Culpable Homicide Bill appears to be a response to the fact that, over a decade after its inception, the offence of Corporate Homicide (introduced by the Corporate Manslaughter and Corporate Homicide Act 2007) has yet to be prosecuted in Scotland. The 2007 offence holds a corporate entity criminally responsible where a death has been caused by gross breach of a relevant duty of care owed by that entity, but, crucially, only where that breach is attributable to the way ‘senior management’ has organised the businesses activities.
“As a senior manager is defined as a person playing a significant role in decisions about the business as a whole, it remains unlikely that bigger companies will be found liable.”
Provisions of the new bill 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.
McGlennan added, “The Culpable Homicide Bill proposes a substantial broadening of the basis by which corporate criminal liability can be identified. The term responsible person has a far broader application than senior manager and encompasses any individual who supervises, manages or organises any people or activities on behalf of the corporate entity. The effect is to create a potentially very wide vicarious criminal liability, with companies held criminally responsible for the actions of employees with quite limited or restricted managerial duties. Thus by way of example a contractor could be criminally responsible for reckless conduct of a site manager that caused death.
“Furthermore the bill also extends liability for corporates to scenarios where the actions of different responsible persons at different times, none of whom may be individually guilty of the offence, when considered together amount to causing the death recklessly.”
