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I have been lucky enough to have achieved a great many successes during my professional career to date.  I have won important cases for individual clients.  I have campaigned with colleagues in the trade union and wider labour movement to achieve great changes in the law.  I have been lucky enough to be described therefore as a campaigning lawyer. 

Campaigning Lawyer, Patrick McGuireToday I reflect with great sadness and confusion upon one area of law that I have completely failed to change.  One campaign that politicians of different political parties have ignored.  This is despite the fact that in many ways it is a cause and a campaign that to this day seems so obviously essential to protect the Scottish people and would so obviously be supported by all of Scottish civic society.

I am referring to the law as it applies to the criminal charges that may successfully be brought against companies where their conduct leads to the death of their employee or other member of the public.  This is an area of law that has come to be known in popular debate as corporate homicide.

In Scotland it is really about whether or not our criminal law in relation to culpable homicide applies to limited companies. 

I am reflecting upon this issue today of all days because it is exactly 10 years since the Corporate Manslaughter and Corporate Homicide Act came into force.  The Act came into force on 6 April 2008. 

Before saying anything further I will be absolutely clear in saying that the legislation is the single most obvious waste of parliamentary time in the history of the Palace of Westminster.  When the Act was a Bill presented to the parliament I and others were entirely clear in saying that it would have absolutely no impact. And 10 years later it can be said with no hesitation but, most importantly with no satisfaction, that we were 100% correct. 

The problem with the law on culpable homicide as it applied to limited companies was brought into sharp public focus as a result of the tragic circumstances surrounding the gas mains explosion that demolished a house and took the lives of a family four in Larkhall in 1999.  The corporate failings of Transco were clear immediately.  Proceedings were brought against them under the common law on culpable homicide and the subsequent court action established beyond any doubt whatsoever that limited companies were above the law in relation to culpable homicide.

It is slightly complicated in law.  It comes down to the fact that in Scots Law for a crime to be committed the Prosecutor must prove that there was a guilty act and guilty mind.  The prosecution of Transco brought into sharp focus the question as to how could a prosecutor prove that a limited company have a “guilty mind”.

The simple fact is that the rules in criminal law about the guilty mind and the guilty act predated the industrial revolution and the growth of medium, large and multinational companies.  In the context of corporate crime the law was understandably an anachronism.

It is out of time.  Transco could not be convicted and the law needed to change. 

The inability of the law to deal with the most serious corporate crime was recognised by everyone following the failed Transco prosecution.  The question was asked how could the law be changed to resolve the problem that the Transco prosecution highlighted.  Scotland initially took the lead in this very important issue.  The Justice Minister at the time set up an expert group to consider the matter.  I was appointed to that group.  The group made clear and robust recommendations about how the law needed to be changed and it needed to be changed radically.  Westminster remained initially fairly silent.  The interest of the Scottish Parliament appeared to wane and nothing was done with the recommendations of the expert report.

The MSP for Larkhall, Karen Gillon, therefore decided to take forward the members bill.  I and other members of the trade union movement worked with Karen in framing her consultation document and preparing her draft bill.  Her case was so compelling that for the first and only time in the history of the Scottish Parliament the bill proposal received the support of a parliamentary majority.  More than 50% of the MSPs at the Scottish Parliament formally signed their name in support of the bill and that support came from all of the parties represented at the Parliament at that stage (except of course for the Conservatives).  John Swinney, Alex Salmond and Nicola Sturgeon all pledged support for Karen Gillon’s recommendation. 

Her bill was bold, progressive and followed clearly the recommendations of the expert group.  It would have made a significant difference in the law.

Strange and unconvincing arguments were raised by parliamentary officials about the devolved competence of Karen Gillon’s bill.  The suggestion seemed to be that the Scottish Parliament could not change the criminal law.  While those discussions were taking place the UK government suddenly brought forward proposals that resulted in the 2007 Act. 

When the UK government presented their draft bill it was obvious to all of the campaigners in Scotland that it would make no difference whatsoever in relation to the conduct of companies or the rate of deaths caused by corporate misconduct.  It was clear that the bill was so flawed that it was unlikely that it would result in any prosecutions at all.  Victim’s organisations such as Families against Corporate Killers all expressed their public concerns about the Corporate Homicide and Corporate Legislation Bill.  Those concerns were ignored.  The Bill was passed into law and 10 years ago the Act became part of our law.

In the subsequent 10 years absolutely nothing has changed.  There has not been a single prosecution in Scotland under the Act.  Workplaces are not safer.  Workplace accidents, injuries and deaths have not decreased.  The 2007 Act was and is a waste of time, effort and emotion. 

Over the previous decade I and other colleagues have continued to present our case to the Scottish Government of different political hues of the need for change and the need for a Scottish Act of Parliament to deal with Scots Law on culpable homicide.  Our calls have so far fallen on deaf ears.  Today, 10 years after the 2007 came into force we renew our demands for change.  We ask if the failure is ours or the Scottish Parliament or Scottish Government.  The past decade has proven that the 2007 Act was completely ineffective and several clear and simple question presents itself. 

Are the Scottish Government willing to correct the errors of their past?

Are the individual MSPs who previously pledged support to the need to reform the law finally willing to deliver on that promise?

Can we finally put party politics aside and, for once, simply do the right thing for the people of Scotland?

Will 2018 be the year not to lament a decade of flawed legislation but instead the year the Scottish Government resolved to take stand, do the right thing and change the law such that the law on culpable homicide applies to companies as much as it does to individuals.

Nicola Sturgeon, Nicol Mathieson, James Wolfe it is over to you.  

Blog by Patrick McGuire, Campaigning Lawyer

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