The expert group set up by the Scottish executive to look at how to solve the conundrum of the ‘controlling mind’ has come up with a distinctive approach

The Scottish courts have grappled unsuccessfully with the concept of “corporate killing”. The essential difficulty of identifying the “controlling mind” is the same in Scotland and England.

It might be thought that experts in Scotland and England would come up with the same solutions. However, the Expert Group on Corporate Homicide set up by the Scottish executive has recommended creating an offence of corporate killing through recklessness – a different approach from that proposed by the Home Office in its Corporate Manslaughter Bill for England and Wales.

Under the proposed offence for Scotland, organisations whose actions, omissions or failure to put in place policies, practices and systems to ensure the health and safety of its employees and the public could face prosecution if these actions, or lack of actions, result in death.

This differs from the Home Office’s proposals, which will essentially build on the English common law crime of gross negligence manslaughter, without the need to identify a “controlling mind”. Instead an organisation will be found guilty if the way in which its senior managers managed or organised its activities caused a person’s death through gross breach of a duty of care.

Most members of the expert group considered that there should be a standalone offence in Scotland to deal with directors and others who are directly responsible for the death of employees or the public. Most also considered there should be a secondary offence for directors or senior managers whose actions or omissions significantly contributed to the offence of corporate killing being committed.

Most members felt that proposals should apply equally to deaths in Scotland caused by organisations based outside Scotland and to deaths caused elsewhere by organisations based in Scotland. However the proposals have drawn a mixed response, with some describing the approach as “absurd”. The concern is that the proposals are different, and have a different legal basis from the approach taken in England.

The Law Commission for England and Wales’ review of corporate manslaughter 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”.

By contrast, the expert group noted that the English approach was based on the English offence of manslaughter by gross negligence, which applies where a duty of care is owed at common law. This is materially different from the common law offence of culpable homicide in Scotland. While it might be possible to import the concept of a “duty of care” into Scots criminal law, this would not be as straightforward as it would be in England.

In contrast to the Home Office’s proposals for fines and imprisonment, the expert group considered a variety of penalties for organisations convicted of the offence. These included: fines based on turnover or profit; equity fines that reduce the value of shares in the company; disqualification of the organisation from activities; corporate probation; community service orders, requiring the organisation to undertake projects that benefit the community; adverse publicity orders, involving publication of the offender’s conviction; the appointment of an independent health and safety administrator until improvements are implemented; requiring directors to attend court during sentencing; and notifying convictions to the Registrar of Companies.

There is no doubt that the approach in Scotland is different. The principal difficulty is that the concept of duty of care, which is drawn from the civil law of negligence, is a familiar feature of the English law of manslaughter.

If the expert group’s proposals are followed, there is no doubt that the existing differences between Scotland and England will widen. The question of alignment was considered, but the group preferred an approach that was “right” rather than following the Home Office proposals.