OVER recent years, it has been virtually impossible to pick up a fleet publication or go to a fleet conference without some talk of corporate manslaughter.

But in Scotland, there’s a different phrase that fleet managers need to be aware of. North of the border, the equivalent of corporate manslaughter is culpable homicide and it could have just as big an effect on fleets that operate in Scotland.

The UK Government is in the process of creating a law that could see companies prosecuted over fatal accidents, including accidents involving fleet drivers, if the accident was caused by management failings.

Legislation that enables directors, fleet managers or individuals to be found guilty of manslaughter has been around for a while, albeit in somewhat toothless form, but this new law would mean companies as a whole could be found guilty.

It essence, it will make it easier for companies that have shown insufficient regard for the safety of their workers or members of the public to be prosecuted for a specific and serious criminal offence.

But there is confusion, particularly as to how the changes in England and Wales are likely to impact on Scotland.

Traditionally, health and safety legislation has been adopted north of the border by way of a concordat, or formal agreement, between the Health and Safety Executive and the Scottish Executive – the coalition between the Scottish Labour Party and the Scottish Liberal Democrat Party that runs the country on a day-to-day basis.

But Scotland has long had its own laws on unlawful killing. The Corporate Manslaughter Act does not propose a change to existing law and any change to legislation would have to be enacted by Scottish Parliament.

David Faithful, a solicitor and fleet consultant for Lyons Davidson Solicitors, explains: ‘There is a significant difference in the way both countries deal with unlawful killing. In England and Wales there is murder and, where the necessary state of mind is absent, a lesser charge of manslaughter.

‘However, in Scotland there is the offence of culpable homicide. This first came to prominence in 1999 when the Lord Advocate used the offence for the first time to prosecute a company, Transco, in respect of a fatal gas explosion.’

The prosecution was dismissed because the charge did not identify the individuals that could be construed as the controlling mind.

The ‘Transco loophole’ meant that in anything other than the smallest companies with simple management structures, it would be virtually impossible to prove individual fault. Such companies were therefore beyond the current reach of the culpable homicide law, which is also now in the position of discriminating against smaller companies.

If the Corporate Manslaughter Bill in England and Wales becomes law and nothing happens in Scotland, companies there could not be found guilty of corporate manslaughter, but those south of the border could.

Labour MSP Karen Gillon has introduced a private member’s bill proposing revisions to the existing culpable homicide laws, which closely mirror the contents of the Corporate Manslaughter Bill.

The fundamental requirements are as follows:

That a person may be guilty of culpable homicide if that person causes the death of another recklessly or by gross negligence.

That an organisation could be liable for culpable homicide by holding it liable if an individual within is guilty of the offence. He or she must have been acting within the scope of the office or on behalf of the organisation in doing the acts that constituted the offence.

That Crown immunity would be removed.

That there could be ‘aggregation’ – where an individual cannot be identified but acts of a number of different individuals, when taken together, would constitute the offence.

The test of whether there has been a breach of the duty of care is also the same as the Corporate Manslaughter Bill. The prosecution must demonstrate:

That the organisation owed the deceased a duty of care.

That there was breach of that duty of care by gross negligence.

‘The question of whether an organisation was in breach of its duty of care will be determined from an investigation of its management structure and whether there was a management failure with regard to issues of health and safety,’ Faithful explains.

‘The penalties for culpable homicide will be imprisonment for individuals and unlimited fines for organisations.’

Faithful believes Scotland will follow Westminster and could even change the law before England and Wales.

‘The concepts will be the same, they have to be. The chances are that the legislation may be introduced in Scotland before England and Wales, as the Corporate Manslaughter Bill is stalling at the moment.

‘This could give problems to a fleet because there would be a much more draconian regime north of the border than south.

‘Whatever fleets are doing in terms of health and safety to comply with Corporate Manslaughter in England and Wales, they will also have to gear up for culpable homicide legislation in Scotland.’