CCA Conference on CORPORATE KILLING LEGAL DEVELOPMENTS IN SCOTLAND

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CCA Conference on CORPORATE KILLINGLEGAL
DEVELOPMENTS IN SCOTLAND
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LEGAL DEVELOPMENTS IN SCOTLAND

• UK Law Health and Safety at Work etc. Act 1974
• Health and safety reserved (to Westminster
  Parliament) by Scotland Act 1998 Schedule 5

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LEGAL DEVELOPMENTS IN SCOTLAND

• Scots Law - culpable homicide
• Criminal Law devolved (to Scottish Parliament) by
  Scotland Act 1998 Schedule 5

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LEGAL DEVELOPMENTS IN SCOTLAND

• Culpable homicide
• Lawful act culpable homicide
• Transco plc v HM Adv. 2004 SLT 41

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LEGAL DEVELOPMENTS IN SCOTLAND

• Mens rea of culpable homicide
• It is now necessary to show gross or wicked or
  criminal negligence, something amounting to, or
  at any rate analogous to, a criminal indifference
  as to consequences. (Paton v HMAdv 1936 JC 19
  quoted in Transco v HMAdv 2004 SLT 41)

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LEGAL DEVELOPMENTS IN SCOTLAND

• utter disregard of what the consequences of the
  act in question may be so far as the public are
  concerned recklessness so high as to involve
  an indifference to the consequences for the
  public generally (Quinn v Cunningham 1956 JC 22
  quoted in Transco v HM Adv 2004 SLT 41)

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LEGAL DEVELOPMENTS IN SCOTLAND

• Scottish mens rea
• Dole
• Objective do the actions of the accused
  demonstrate an indifference/disregard

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LEGAL DEVELOPMENTS IN SCOTLAND

• Prosecution of company for common law crime
• Dean v John Menzies (Holdings) Ltd 1981 JC 23
  (shameless indecency)
• Purcell Meats (Scotland) Ltd v McLeod 1986 SCCR
  672 (attempted fraud)

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LEGAL DEVELOPMENTS IN SCOTLAND

• Transco plc v HM Adv. 2004 SLT 41 (culpable
  homicide)
• Prosecution of company for culpable homicide
  competent

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LEGAL DEVELOPMENTS IN SCOTLAND

• Controlling mind theory
• Purcell Meats (Scotland) Ltd v McLeod
• Transco plc v HM Adv.

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LEGAL DEVELOPMENTS IN SCOTLAND

• Transco plc v HM Adv.
• What the Crown argued
• What the trial judge decided

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LEGAL DEVELOPMENTS IN SCOTLAND

• What the Appeal Court said
• The controlling mind test applies (Tesco
  Supermarkets Ltd v Nattrass 1972 AC 153
  applied)

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LEGAL DEVELOPMENTS IN SCOTLAND

• Each element of the crime must be proved against
  the same controlling mind
• Aggregation of controlling minds is
  impermissible

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LEGAL DEVELOPMENTS IN SCOTLAND

• The controlling mind may be a committee as well
  as an individual (Lord Hamilton)
• If the controlling mind in question is a
  committee, each element of the crime must be
  proved against it as composed of the same
  individuals (Lord Hamilton)

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LEGAL DEVELOPMENTS IN SCOTLAND

• Law reform in Scotland
• Position of Scottish Executive

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LEGAL DEVELOPMENTS IN SCOTLAND

• Alternatives for reform
• Home Office proposals
• Draft Criminal Code for Scotland
  (www.scotlawcom.gov.uk)

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LEGAL DEVELOPMENTS IN SCOTLAND

• cl.16(1) A legal person is guilty of an offence
  if an office holder is guilty of the offence and
  was acting within the scope of the office or on
  behalf of the legal person in doing the acts
  constituting the offence or giving rise to
  liability for the offence.
• (2) A person who, as an office holder of a
  legal person, is responsible for any action which
  amounts to, or leads to, the commission of an
  offence by the legal person or any of its
  employees or agents, is guilty of that offence
  unless the consequences of the action could not
  reasonably have been foreseen.

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LEGAL DEVELOPMENTS IN SCOTLAND

• cl.16(3) This section does not limit the effect
  of any other provision of this Act or of any
  other enactment which imposes criminal liability
  on a legal person (whether in terms or by using
  the word person without qualification) or on an
  office holder of a legal person.
• (4) In this section
• (a) action includes any decision, policy,
  practice or course of conduct

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LEGAL DEVELOPMENTS IN SCOTLAND

• (b) legal person means any body or entity
  (such as a company or partnership) which has a
  separate legal personality, but does not include
  an individual human being
• (c) office holder means a person participating
  in the control of the legal person as a director,
  manager, partner or holder of a similar office or
  position
• (d) a person is responsible for an action not
  only if the person is directly responsible for it
  but also if the action is attributable to the
  persons neglect or if the person connived in or
  consented to it.

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LEGAL DEVELOPMENTS IN SCOTLAND

• Corporate killing or general reform
• Controlling mind or management failure
• Accountability