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T H E CITY OF E D I N B U R G H C O U N C I L
Culpable Homicide (Scotland) Bill - Response to
Consultation
Executive of the Council
12 September 2006
1
Purpose of report
In June 2006 a Consultation Paper was published and circulated by Karen
Gillon MSP which relates to the proposed introduction of a Members’ Bill in the
Scottish Parliament, namely the Culpable Homicide (Scotland) Bill. This report
provides a summary of the main issues raised in the Consultation Paper and
provides a draft response from the Council to the consultation which closes on
12 September 2006.
2
Summary
2.1 In December 1999 four occupants of a house in Larkhall had suffered fatal
injuries as a result of a gas explosion in the house. The gas network provider,
Transco was ultimately convicted on charges under the Health and Safety at
Work etc Act 1974 in respect of failures under that Act. In her introduction to
the Consultation Paper Karen Gillon states that many people took the view that
only a conviction for culpable homicide would have carried with it the
appropriate level of moral opprobrium in respect of responsibility for the deaths.
2.2 Prior to its conviction under the Health and Safety at Work etc Act 1974,
Transco had been charged with culpable homicide. In June 2003 the High
Court of Justiciary sitting as Court of Criminal Appeal held that the charge
against Transco was irrelevant as in it the Crown had not sought to attribute to
any individual or group of individuals constituting the “controlling mind” of the
company, the necessary state of mind and degree of culpability which is a prerequisite of the crime of culpable homicide.
2.3 The Consultation Paper suggests that because of difficulties in identifying the
controlling mind of a company or other corporate body (other than a very small
company with a simple management structure) it will be impossible to
successfully prosecute large companies or other organisations for culpable
homicide.
2.4 The Consultation Paper contends that the law on culpable homicide requires to
be amended and clarified so that it applies consistently, fairly and evenly to both
individuals and organisations.
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3
Main report
3.1 The draft Bill accompanying the Consultation Paper defines the offence of
culpable homicide as either causing death recklessly or causing death by gross
negligence, both of which concepts are further defined in the draft Bill. Most
significantly for entities such as local authorities the provisions of the draft Bill
make clear that organisations, as well as individuals in their own right, can be
guilty of the offence. This can occur in a number of ways.
3.2 Firstly, the draft Bill provides that an organisation will be guilty of the offence of
culpable homicide where an office holder of the organisation is guilty of the
offence of culpable homicide by causing death recklessly and was acting within
the scope of his office or on behalf of the organisation in doing the acts
constituting the offence or giving rise to liability for the offence.
3.3 Secondly, the draft Bill further proposes that an organisation will be guilty of the
offence of culpable homicide if the acts done by a number of different office
holders at different times, when considered together, are sufficient to constitute
the offence of culpable homicide by causing death recklessly.
3.4 Finally, the draft Bill provides that an organisation will be guilty of the offence of
culpable homicide if the way in which any of the organisation’s activities are
managed or organised by its office holders amounts to a gross breach of duty of
care owed by the organisation to a person, and the breach causes the death of
that person.
3.5 As is clear from paragraphs 3.2 to 3.4 above, the concept of “office holder” is
central to the liability of an organisation for culpable homicide. Office holder is
defined as someone who “participates in the management or organisation of the
whole or any part of the activities of the organisation, as a director, manager,
partner or holder of similar office or position”. Those whose position would be
covered by the definition of “office holder” is not clear in the context of a local
authority.
3.6 The draft Bill also provides that a person who, as an office holder of an
organisation, is responsible for any action which amounts to, or leads to, the
commission of the offence of culpable homicide by causing death recklessly by
the organisation or any of its employees or agents will him or herself be guilty of
that offence himlherself unless the consequences of the action could not
reasonably have been foreseen. This provision is made in Clause 4(3) of the
draft Bill. In this respect the draft Bill can be seen to go further than providing,
first, that individuals can be found guilty of culpable homicide by causing death
recklessly and second, that organisations can themselves be found guilty of this
offence.
In this respect the draft Bill provides that, in the circumstances
provided for, an individual may be found guilty of culpable homicide by causing
death recklessly where the organisation of which he is an office holder is found
guilty of that offence.
3.7 In terms of the draft Bill the penalty which could be imposed on an individual
following conviction for culpable homicide would be an unlimited fine or a
custodial sentence up to or including life imprisonment. The penalty which could
be imposed on an organisation on a conviction for culpable homicide would be
an unlimited fine. Such penalty can presently be imposed on an organisation
following conviction for certain offences under the Health and Safety at Work
etc Act 1974. For an organisation the practical consequence of these different
convictions would accordingly be similar. The name of the crime would be
different, and it may be that despite the similarity of potential outcomes, public
perception would be that a conviction for culpable homicide in certain
circumstances was more appropriate.
2
,
3.8 The consultation paper invites consultees to respond by commenting on the
proposals contained in the draft Bill. The consultation paper also sets out a
number of specific questions which consultees are invited to answer in addition
to any other comments which such consultees may have. The questions are
reproduced, simply for information, in Appendix 2.
3.9 Many of the questions reproduced in Appendix 2 address technical matters of
criminal law andlor matters in relation to which local authorities do not have
either a direct or distinct interest in responding. In these circumstances it is not
proposed that the Council submit a response to the consultation paper providing
answers to each of the specific questions. Rather it is proposed that the
Council respond with comments on the provisions of the Bill which relate to the
criminal liability of organisations for culpable homicide in the generality. In
addition it is proposed that the Council make specific comment in relation to the
provision of the Bill discussed at 3.6 above for the reasons set out in the draft
response attached to this report. The Council’s proposed response is set out in
Appendix 1.
3.10 It should be noted that, on 19 July 2006, the Government introduced a
Corporate Manslaughter and Corporate Homicide Bill to the Westminster
Parliament. That Bill is intended to apply throughout the United Kingdom. It
proposes an offence of corporate homicide in Scotland (to be called corporate
manslaughter in other parts of the UK.) That offence would be similar but not
identical, to the offence of culpable homicide by an organisation proposed in
Karen Gillon’s draft Bill. The Westminster Bill does not create any new offences
for individuals. If the Westminster Bill were to be enacted it seems unlikely that
the proposals in Karen Gillon’s draft Bill would proceed as the principal
proposals in relation to culpable homicide by an organisation would largely
duplicate the provisions of the Westminster Bill.
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Financial Implications
4. I There are no immediate financial implications. If enacted in its present form
there may be financial consequences for the Council were circumstances to
arise as a result of which the Council was tried and convicted of the offence of
culpable homicide in the form of the fine which conviction would attract.
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Recommendations
5.1 To note the main issues raised in the Consultation Paper as detailed in section
3 of this Report.
5.2 To agree to the draft response to the Consultation as detailed in Appendix 1 of
this Report.
5.3 To submit the response ahead of Scrutiny on the grounds of urgency in terms of
Standing Order 58(7), in order to meet the deadline for submission of 12
September 2006.
L
‘’1
1,b
Jim Inch
Director of Corporate Services
$ egiQ
3
Appendices
Appendix 1: Response by The City of Edinburgh Council to
Consultation Paper by Karen Gillon, MSP on the Culpable Homicide
(Scotland) Bill
Appendix 2: Questions appended to Consultation Paper
Contactltel
Gill Lindsay, Council Solicitor
Tel: 0131 529 4217 E-mail: [email protected]
Wards affected
City-Wide
Background
Papers
Consultation Paper June 2006 on Culpable Homicide (Scotland) Bill
- Karen Gillon MSP (June 2006)
4
APPENDIX ONE
Karen Gillon MSP
7 Wellgate
Lanark
ML11 9DS
Dear Ms Gillon
CULPABLE HOMICIDE (SCOTLAND) BILL - CONSULTATION PAPER
I refer to your consultation paper on this matter. The City of Edinburgh Council
welcomes the opportunity to respond to the consultation but the Council does not
intend to answer every question posed in Part 4 of the Consultation paper. The
Council has comments in relation to questions 1.1, 1.3 and 2.2 with a further
comment in relation to Clause 4.3 of the draft bill, which are of most relevance to
local authorities.
The Council’s comments are as follows:-
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A. Question 1.1 Do you have any comment to make on the need for legislation
of this type as detailed in this paper to ensure equality across companies in
relation to culpable homicide?
The Council wishes to make the following observations in relation to the draft Bill in
so far as it makes provision that, in specified circumstances, an organisation such as
a local authority can, in principle, be found guilty of culpable homicide.
The Council recognises that on one view it is desirable for the law to allow for
organisations to be convicted of the offence of culpable homicide. As noted in the
Consultation paper, conviction for the offence carries with it a particular and
appropriate level of moral opprobrium which it may be argued is not present where,
for example, an organisation is convicted of health and safety offences arising from
the death.
In addition it is recognised that such legislation may be viewed as bolstering the
duties already incumbent on organisations such as local authorities in terms of health
and safety and other legislation as well as duties of care owed by organisations to
individuals at common law. The draft Bill, if enacted, would conceivably re-inforce the
already recognised need for the highest standards to be set and achieved in the
performance of the Council’s many and varied activities.
It may also be asked whether it is necessary or appropriate for organisations to be
found liable for culpable homicide in circumstances where no identifiable individual or
individuals is/are personally criminally liable for that offence, particularly, again, as
there is a strong likelihood that a prosecution may be brought against the
organisation under existing health and safety legislation.
This leads to a more general point namely that there are already rigorous duties
incumbent upon organisations such as Local Authorities under, for example, health
and safety legislation, the breach of which may give rise to criminal liability. In
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addition, and at a more practical level, conviction for ,for example, certain health and
safety offences already carries with it a considerable degree of moral opprobrium
and, significantly, the possibility of an unlimited fine for the organisation on
conviction. In these circumstances it could be argued that the draft Bill, in so far as it
seeks to establish criminal liability of organisations for culpable homicide, does not
make an additional contribution either to the duties incumbent on an organisation or
penalties to which it could be subjected to in the event of it causing the death of an
individual.
The Council recognises the existence and validity of the wide variety of views held in
society, some of which are canvassed in the above points, regarding the necessity
and appropriateness of organisations such as local authorities being subject to the
criminal law on culpable homicide.
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6. Question 1.3 Do you have any comment on the definition of organisations
and office holders as defined in sections 8 and 9 of the Bill?
The definition of “office holder” is central to the liability of an organisation for culpable
homicide in terms of the provisions of the draft Bill. The Council is of the view that it
is not clear, in the context of a local authority, which positions or offices would be
covered by the term “office holder” as defined.
C. Question 2.2 - Do you have any comment to make on the proposal that and
organisation is made responsible for the actions of their employees for this
offence (made vicariously liable) as proposed in section 4 (1) of the Bill?
The Council questions whether it is necessary or appropriate for organisations to be
found vicariously liable for culpable homicide in cases where an identifiable individual
is found guilty of that offence in his or her individual capacity. In such circumstances
it may be argued that as criminal liability for the offence has been deemed to rest
with an individual, thus conveying society’s opprobrium, it is neither necessary nor
appropriate for an organisation also to be found criminally responsible. That is
particularly so given that, in many circumstances, there is a likelihood that a
prosecution may be brought against the organisation, arising from the same
circumstances, under existing health and safety legislation.
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D. Other comments As requested in paragraph 1. I 7 of the Consultation Paper.
This comment relates to Clause 4.3 of the draft Bill
Clause 4 of the draft Bill proceeds under the heading “Liability for an Organisation for
causing death recklessly”.
Clause 4(3) is in the following terms:
‘X person who, as an ofice holder... is responsible for any action which amounts to,
or leads to, the commission of [the offence of causing the death of another person
recklessly] by the organisation or any of its employees or agents is guilty of that
offence unless the consequences of the action could not reasonably have been
forseen” (emphasis added)
It appears that Clause 4(3) does not seek to establish the liability of an organisation
for the criminal offence of culpable homicide. Rather, where an organisation is guilty
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of the offence of culpable homicide by causing death recklessly, Clause 4(3) would
seem to establish, in principle, the (derivative) personal criminal liability of an office
holder of that organisation for the offence committed by the organisation.
In the first instance, this would seem to go beyond the general aims the draft Bill,
as outlined in the consultation paper. Individual criminal liability for the acts of an
organisation goes well beyond the establishment of criminal liability for culpable
homicide on the part of organisations themselves.
More fundamentally it may be viewed as disproportionate for an individual to be
convicted of the crime of culpable homicide by causing death recklessly in
circumstances where (a) the liability of that individual is not directly established in
terms of Clause 2 of the draft Bill and (b) where, in any event, ‘primary liability’
rests with the organisation itself in terms of Clause 4(2).
This is not least because, as the consultation paper acknowledges, of the
significant moral opprobrium which would attach to a conviction for culpable
homicide but also the significant penalty to which an individual convicted of
culpable homicide could receive. In terms of Clause 10 of the draft Bill an
individual convicted of Culpable Homicide can receive not only an unlimited fine
(to which an organisation can also be subject) but also a custodial sentence up to
and including life imprisonment.
At a more practical level the possibility of individual criminal liability for culpable
homicide in the particular circumstances envisaged by Clause 4(3) might
conceivably deter individuals who would otherwise take on certain office holder
positions from so doing, for example, office holder positions in fields where the
activities for which the office holder is or may be responsible carry with them a
greater inherent risk of the personal injury or death of individuals.
This may make recruitment for such posts difficult and, more fundamentally, may
conceivably inhibit organisations such as local authorities in the performance of
their functions thus undermining the aims of the draft Bill in so far as it seeks to
improve standards, whether in the in terms of health and safety or other
legislation or wider duties of care owed by organisations to individuals.
In any event it is, it is submitted, inappropriate for Clause 4(3) to be included in a
Clause of the draft Bill which deals ostensibly with “Liability for an Organisation for
causing death recklessly” (emphasis added). If such provision is to be made it
ought clearly to be ‘labelled’ as such within a self contained Clause of the Bill.
Yours sincerely
Tom Aitchison
Chief Executive
7
APPENDIX TWO
CULPABLE HOMICIDE (SCOTLAND) BILL
- QUESTIONS FOR CONSULTEES
GENERAL
1.I Do you have any comment to make on the need for legislation of this type as
detailed in this paper to ensure equality across companies in relation to
culpable homicide?
1.2 Do you have any comments to make on the proposals outlined which suggest
that there may be two different types of statutory kinds of culpable homicide culpable homicide by causing death recklessly and by gross negligence?
1.3 Do you have any comment on the definition of organisations and office holders
as defined in sections 8 and 9 of the Bill?
1.4 Do you have any comments to make on the provisions of the Bill applying to
Ministers, Civil Servants and Crown Bodies in the same way they apply to
natural persons and organisations - as set out in sections 12 and 13 of the Bill?
CULPABLE HOMICIDE BY CAUSING DEATH RECKLESSLY
2.1 Do you have any comment to make on the way in which causing death
recklessly is defined in paragraph 3.5 of the proposal and detailed in section 2
of the Bill?
2.2 Do you have any comment to make on the proposal that an organisation is
made responsible for the actions of their employees for this offence (made
vicariously liable) as proposed in section 4(1) of the Bill?
2.3 Do you see any difficulties as to how aggregation as proposed in section 4(2) of
the Bill will work in practice?
CULPABLE HOMICIDE BY GROSS NEGLIGENCE
3.1 Do you have any comment to make on proposals set out in paragraph 3.7
to re-introduce culpable homicide by gross negligence into the law in Scotland?
3.2 Do you have any comment to make on how these proposals are defined in
section 5 of the bill?
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.
3.2 (sic)
Do you see any difficulties with what is proposed to define what is meant
by that offence where it is committed by a natural person in section 3 and
by an organisation in section 5 of the Bill?
3.3 Do you have any comment to make on the definitions of a duty of care and
gross breach as proposed in sections 6 and 7 of the Bill?
3.4 Do you see any difficulties with the definitions of a duty of care and gross
breach as proposed in sections 6 and 7 of the Bill?
SANCTIONS
4.1 Do you have any comment to make on the penalties detailed in section 11
of the bill?
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Agenda item:
Report title:
Culpable Homicide (Scotland) Bill - Response to Consultation
In accordance with the Council’s Standing Orders, the contents of this report
have been noted by the appropriate Executive Member.
Without prejudice to the integrity of the report, and the recommendations
contained within it, the Executive Member expresses hidher own views as
follows:
For information - Standing Order 57(1) states:
“Heads of Department will prepare reports, with professional advice and recommendations, on matters
requiring decisions by the Executive:
>
a report seeking decisions on matters of corporate strategy, corporate policy and corporate
projects will be submitted direct to the Executive
>
a report seeking decisions on matters relating to the special responsibilities allocated to an
individual member of the Executive will be submitted, in the first instance, to that member. The
member will add his or her own recommendation to it before submission to the Executive. Where
the Executive member disagrees with the advice and the recommendation of the officers, the
Executive member will also state his or her reasons.”