The Expert Group emphasised that the identification doctrine should be buried. It stated:

"There are a number of problems associated with this identification principle. For example, the attribution of liability is associated with the conduct and states of mind of individuals. In organisations with complex, dynamic and diffuse organisational structures, it may be difficult to identify individuals at a senior level who are sufficiently directly involved to enable their state of mind to constitute the mens rea of the organisation. This makes it difficult when prosecuting an offence at common law to pinpoint the controlling mind in any but the very simplest type of organisation. It is further complicated by the fact that corporate structures, the make-up of groups and the positions held by individuals, inevitably change over the course of time. The Court [in the Transco case] considered that the relevant individuals must be the same throughout the commission of the offence." (para 2.5)

"... the Court expressly stated that the law of Scotland does not recognise the principle of ‘aggregation’, whereby conduct and states of mind of a number of people over a period of time, none of whom individually could be said to have possessed the necessary mens rea, might nonetheless be accumulated so that they collectively could provide the necessary mens rea which is then attributed to the corporate body." (2.7)

The Committee concluded that:

"The implication of the Appeal Court judgement in the Transco case is, therefore, that complex organisations cannot in practice be prosecuted for culpable homicide. The Group considers that this gap in the criminal law needs to be addressed and that the law should be amended to enable such organisations to be prosecuted for culpable deaths arising from their activities."

The Commitee was criticial of the Home Office proposals. It stated that:

"The Group feels strongly that the draft Bill for England and Wales is not an appropriate model for a number of reasons:

The Committee stated the following:

"The Group has identified a number of drivers for legislative change, which include:

The report summarised its proposed new offence in the following way:

"The starting point is where there has been the death of an employee or of a member of the public and that death has been caused by recklessness as defined by the Draft Code (see 7.3) on the part of a person or persons within the organisation. The acts of individuals should be capable of aggregation in order to establish the physical elements of the offence. The offence would be attributed to the organisation on the basis of vicarious liability of the organisation for those physical acts. Having established the vicarious liability of an organisation for the reckless acts or omissions of its employees, it would then be necessary for the prosecution to establish an element of corporate fault before the organisation can be convicted of the proposed new offence. That corporate fault would be based on evidence of failures in the organisation’s management systems or corporate culture that led to the death. At the same time individual directors and senior managers should be individually liable to prosecution where there is clear evidence that they have a direct responsibility for the death."

The committee proposed that the “recklessness”, along the lines set out in the Draft Criminal Code for Scotland, should be a" key component of the proposed new offence". Recklessness is defined here as:

The Committee says that:

"The Commentary [to the Code] further explains that recklessness embraces both the “deliberate risk-taker, the person who knows that his or her conduct presents certain risks, or is aware that certain circumstances may be present. But it also embraces the person who is not aware of the risks, but who judged by certain objective standards, ought to be aware”. This is important. “Ought to be” brings in an objective standard. The court will not need to establish that the state of mind of a person was wilfully reckless or negligent but only that the person should have realised that their conduct would give rise to risks that were “obvious and serious”.

The Committee stated that it would first be necessary to determine whether there recklessness within an organisation caused death.

"The Group considers that the substantive offence should be causing death by the recklessness conduct of an employee or employees of an organisation, these physical acts being established where necessary by aggregation of a number of employees over a period of time. We consider that the approach taken under the Australian Criminal Code Act 1995 which makes employers liable for the “physical element of an offence [if it] is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority”, could be an appropriate model." (para 9.10)

Once " the vicarious liability of an organisation for the reckless acts or omissions of its employees" has been established, it would then be necessary to be able to establish an element of corporate fault. The Committee proposed that the focus should be on "management failure" - which was explained by the Committee as follows:

"The purpose of focusing on whether management systems are in place, on the prevailing culture within an organisation and on the extent to which health and safety obligations were complied with in theory and in practice, is to establish that the reckless acts or omissions of different individuals and groups over a period of time within the organisation should be imputed to the organisation itself. In other words, to establish that there was corporate fault. This approach seeks to move away from the notion of liability arising from the intent of individual senior managers - or any group of individuals - towards an approach which focuses on the organisation’s effectiveness in managing its activities and operations. Rather than seeking to identify a controlling mind with all the current difficulties associated with the identification principle and proving mens rea, the focus would be on the ‘how’ of an organisation’s management rather than the ‘who’.

The Law Commission for England and Wales in their review of corporate manslaughter law recommended a management failure approach whereby a corporation would be liable for a death where “it is caused by a failure, in the way the corporation’s activities are managed or organised, to ensure the health and safety of persons employed in or affected by those activities”.

The Commission considered that a failure could involve a failure to ensure a safe system of work, or a failure to provide safe premises or equipment, or competent staff.13 This could also be linked into the statutory duties set out in sections 2-6 of the Health and Safety at Work Act (see para 5.4 above).

In the context of a criminal trial, how could it be established that there was a management failure within an organisation? One approach would be to require the prosecution to demonstrate - as an essential component of the offence - that there was a failure to ensure that adequate policies, systems and practices were in place and were communicated to relevant persons. The organisation would, of course, have the opportunity to lead evidence that it did have appropriate systems in place.

Alternatively a new statutory offence could provide that once the Crown has established that the physical element of an offence had been committed by a person or persons for whom the organisation is vicariously liable, the organisation must argue that it had acted with ‘due diligence’. This might involve them showing that they had all reasonable policies, systems and procedures in place - perhaps including an actively enforced corporate compliance programme - which should have prevented the offence from happening.

.... One aspect of ‘management failure’ - though not the only one - would be allowing a ‘corporate culture’ to exist which encourages or tolerates behaviour which results in a death, or in failing to promote a corporate culture which mitigates against such behaviour. One definition of ‘corporate culture’, adopted in the Australian Criminal
Code Act 1995, is “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the
relevant activities takes place.” Thus for an organisation to have a written set of policies and regulations would not be sufficient in itself; the culture of the organisation would have to be such that a proper emphasis was put on informing employees and contractors of the rules and ensuring their implementation and enforcement. If the organisation either allowed a corporate culture to exist which directly encouraged, tolerated or led to practices which resulted in a death - or if it failed to take all reasonable steps to prevent such a culture existing - it would beliable. "

Individual Culpability

The Committee was split in relation to this issue. The report states:

"The Group feels strongly that any individual who is responsible for a death in the workplace should be liable to prosecution regardless of their position within the organisational hierarchy. However, we are divided on whether a new stand alone offence for individuals is necessary. A majority favour a new offence which mirrors the standard of ‘recklessness’ which we are proposing for the corporate offence. A stand alone offence would cover offences which would fall short of culpable homicide, but which many of us consider should be prosecutable. We believe this would assist in ensuring the successful prosecution of individuals who are directly responsible for causing death and that it would help to overcome the apparent limitations of culpable homicide prosecutions. Others of us feel that it would be wrong in principle to have a lower legal threshold simply because the death occurred in a work-related situation and moreover that any new statutory offence would not have the same public opprobrium as culpable homicide. We are all agreed that the charge of culpable homicide should be more vigorously pursued in appropriate cases and that it would be preferable to prosecute individuals for culpable homicide, rather than a new stand alone offence, where possible."

A majority of the group supported the creation of two new offences involving individuals. One would be an offence that could be committed by individuals that mirrored the corporate offence set out above. The second would be an offence that could be committed if a director or senior manager contributed to the offence by the company. The report summarises the position in the following way:

The Group is agreed that individuals, at any level in an organisation, should face criminal charges if they can be shown to be responsible for a death. The Group considers that the most effective way of achieving this is through a combination of both an individual offence and a secondary offence. This would mirror existing Health and Safety legislation which includes both a stand alone offence, applicable to any employee, under section 7, and a secondary offence under section 37 where a “director, manager, secretary or other similar officer” has contributed to a corporate offence. The individual offence would apply to any person who causes a death through their work, without requiring that the organisation which employs them is also guilty of corporate killing. The majority of the Group considers that the most effective way of achieving this is through a new stand alone offence for individuals, based on the Draft Code standard of ‘recklessness’. A charge of culpable homicide could continue to be brought in appropriate cases. The Group agrees that a new secondary offence would be desirable to allow the prosecution of an individual director/senior manager (following successful prosecution of the organisation), where his or her acts or omissions directly contributed to the death.

The business representatives amongst us feel that a possible consequence of providing additional offences for individuals (beyond culpable homicide) is that it could inhibit people taking up senior posts or indeed new investment in Scottish industry if Scots law in relation to individual directors/senior officers were significantly more stringent than in other jurisdictions, including the rest of the UK. They feel that a balance has to be struck between protecting the health and safety of workers and the public and ensuring that the responsibilities did not act as a disincentive to organisations and talented directors/managers locating and working in Scotland. The HSE representative considers that most failings leading to death are organisational, not individual and therefore that there is a danger that an individual offence could lead to scapegoating of individuals within organisations. However, most members consider that clearly establishing individual liability would encourage directors and managers to take health and safety more seriously and therefore promote good management. They believe that good managers would not be deterred by health and safety

Again on this issue the Committee was divided. The report states:

"The Group is heavily divided on whether the offence should be extended to incidents causing serious injury or long-term ill-health which is non-fatal. Some members feel strongly that in practice the severity of the outcome of any incident could simply be a matter of chance and that if an organisation’s reckless actions lead to serious injury or occupational illness then they should be punished. Other members consider extending the offence in this way could lead to dilution of the corporate killing offence and could potentially over-stretch investigative and enforcement resources. However we are agreed that this is a complex issue with possible implications for health and safety legislation and that further consideration should be given to it."

A majority of the Committee agreed that the offence should apply to deaths that take place abroad when the management failure took place in Scotland. The report states:

The Group notes that the extraterritoriality of criminal law is evolving and that in relation to individuals culpable homicide already applies to offences committed abroad16. It is also understood that the Scotland Act 1998 does not exclude the possibility of creating extra-territorial offences and a number have been created under Acts of the Scottish Parliament. A majority considers that it is important for the proposed new offence to apply to situations where the management failure took place in Scotland but the death took place abroad, otherwise organisations could evade responsibility for deaths of their overseas workers. Some members consider it is inappropriate to apply UK health and safety standards to operations in other countries with different standards17. A number think that the practical difficulties in investigating offences committed overseas by Scottish-based organisations would be almost insurmountable. However, most members feel that the practical problems can be exaggerated and should not mean that deaths occurring overseas are excluded from the scope of the law. Moreover organisations should apply the same standards to their operations whether in Scotland or in other countries. On balance, therefore, the Group considers that the offence should cover both foreign organisations operating in Scotland and Scottish companies operating overseas.

The Committee agreed that the offence should apply to crown bodies - and rejected the restrictions set out in the Home Office draft bill. The report states:

"The Group considers that the removal of Crown Immunity should be more extensive than the Home Office proposal not least because the term ‘exclusively public function’ could be interpreted very widely. We believe that when a death is caused by the recklessness of agents of a public authority then the authority should assume vicarious liability for that death. The prosecution would then be required to establish that there was management failure within the public authority. The Group appreciates that public policy decision making raises sensitive questions but as long as public bodies have systems in place to ensure that decision-makers take into account relevant factors and these systems are followed, then there would be no prosecution. " (para 14.3)

"The Group believes that there is considerable scope to broaden the range of available penalties for organisations beyond simple fines and considers that this would respond to public demand for social and restorative justice. We are particularly drawn to community service and corporate probation orders as possible sanctions as both contain an element of social justice. Corporate probation could also involve organisations taking steps which might help to prevent possible future incidents. Any fines which are imposed should be profit-based and consideration should be given to using the confiscation powers under the Proceeds of Crime Act 2002 in appropriate cases. Non-financial penalties will be particularly appropriate for public sector or not-for-profit organisations.

We consider that providing a suite of possible penalties would provide the courts with the flexibility to respond to the many and various circumstances of the cases which may come before them. Penalties could be based on consideration of the seriousness of the offence, including the number of people affected and the severity of the recklessness involved. The nature and record of the organisation involved, such as whether they are profit-making and whether it was a first offence, could also be taken into account. In order to enable the court to determine which penalty, or combination of penalties, would be appropriate in each individual case a background report should be provided detailing any previous convictions of the organisation or its senior staff."