The Scottish Government

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Footnotes

1. Where use of the word 'majority' has been made in the report this denotes that more members of the Group, as constituted, held a particular view than not.
2. Any views expressed by the Deputy Crown Agent in the course of discussions are not to be taken as being those of his Department or the wider Executive.
3. Criminal law normally refers to 'persons', which can include legal persons such as companies, corporations and partnerships. The wider term 'organisation' is used throughout this Report in order not to pre-judge the scope of any new offence
4. Transco PLC v HMA, 2004 SCCR 1.
5. "Draft of a Bill to create, and make provision in connection with, a new offence of corporate manslaughter", Home Office, March 2005.
6. p.3, section 10, "A Draft Criminal Code for Scotland with Commentary", Clive, Ferguson, Gane and McCall Smith, Scottish Law Commission. The Draft Code goes on to make it clear that offences should apply to 'legal persons' meaning any body or entity (such as a company or a Scottish partnership) which has a separate legal personality, not only to natural persons.42-43 section 16.
7. Para 25, p.32, Appeal No XC392/03, Opinion of Lord Osborne in appeal by Transco against HMA.
8. Paton v HM Advocate 1936 JC 19 where Justice-Clerk Aitchison observed at p.22: "it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved".
9. op cit, p31, section 10..
10. Section 12.2, Australian Criminal Code 1995.
11. "Legislating the Criminal Code: Involuntary Manslaughter. Item 11 of the Sixth Programme of Law Reform: Criminal Law", The Law Commission for England and Wales, 4 March 1996.
12. ibid, p110.
13. op cit, p109-110.
14. ibid, Section 12.3.
15. Art and part guilt is where all persons who participate in the commission of a crime (be it instigating the crime, providing technical assistance or actual participation in the carrying out of the crime) together are equally responsible for the crime irrespective of the particular role played by each individual in its commission.
16. Under the Criminal Procedures Act 1995 "any British citizen or British subject who in a country outside the United Kingdom does any act or makes any omission which if done or made in Scotland would constitute the crime of murder or culpable homicide shall be guilty of the same crime and subject to the same punishment as if the act or omission had been done or made in Scotland".
17. They also noted that consideration was being given under the draft European Service Directive to including a derogation on the country of origin principle in relation to health and safety legislation. This would mean that within the EU organisations would be subject to the health and safety requirements of the country (or countries) in which they are operating rather than those of their home country.
18. Good summaries of these arguments, and of the different sentencing options can be found in Slapper and Tombs 1999; Croall 2001; Jefferson 2001; Croall and Ross 2002; Gobert and Punch 2003. The Law Reform Commission of New South Wales (2003) contains a thorough review of these options along with an extensive bibliography.

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