FM slammed for failing to act over Scots workplace negligence deaths

It has been confirmed by Lord Advocate Dorothy Bain that there have been no prosecutions for 15 years in Scotland under corporate gross negligence laws described as a "ground-breaking piece of legislation" by then UK justice minister Maria Eagle.

READ MORE: 'Another disaster waiting to happen' warning as Network Rail admit Scots crash fails

Moves to bring in a tougher law of culpable homicide in Scottish law were backed by Louise Taggart, whose brother Michael was killed at work in Dundee in 2005 when a live cable was wrongly labelled “not in use”. She said the bill would act as "a deterrent" for employers.

The former employment lawyer said her brother died in an "entirely preventable" electrocution and referred to his employer company as "the invisible man" sitting in the dock as it was convicted of health and safety offences in relation to his death.

Named the most inspirational health and safety person of 2018 after a poll of Safety and Health Practitioner magazine readers, she said the conviction provided "very little in the way of justice".

Health and Safety Executive data seen by the Herald shows that 26 workers died with fatal injuries in 2022/23 - a rate of 0.95 per 100,000 of population That's nearly 50% higher than the average rate for the previous five years.

It is over double the 0.41 per 100,000 fatality rate for the whole of Great Britain.

The HSE says that one explanation for the Scottish spike may be that a greater proportion of workers were employed in higher risk industry sectors or occupations compared with Great Britain as a whole.

From April 2008, all workplace fatalities were to be investigated under the Corporate Manslaughter and Corporate Homicide Act (CMCHA).

Arising in the wake of a perception of inadequate fines and a string of failed prosecutions for culpable homicide in Scotland or corporate manslaughter in England it meant organizations and, for the first time, government bodies faced an unlimited fine if they were found to have caused death due to their gross corporate health and safety failures.

Justice Minister Maria Eagle said in launching the legislation: "This is about ensuring justice for victims of corporate failures. For too long it has been virtually impossible to prosecute large companies for management failures leading to deaths.

“The new Act changes this, for the first time companies and organizations can be found guilty of corporate manslaughter on the basis of gross corporate failures in health and safety. The Corporate Manslaughter and Corporate Homicide Act will make it easier to prosecute companies who fail to protect people.”

The HSE analysis only take into account those accidents reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations which spark their inquiries and safety campaigners believe there are far more deaths that are unaccounted for by them, such as fatal diseases including Covid-19, workplace related suicides, and non-rail transport accidents, including on the road, air and at sea.

According to the Marine Accident Investigation Branch there were 30 deaths in 27 fatal incidents at sea or inland waterways reported to the MAIB in 2022. Six were in Scottish waters, that are not accounted for in the HSE study.

They include an incident where a Scottish trawler, Njord, sank with the loss of a life in the North Sea.

An interim report into the capsizing found that none of the crew on board were wearing lifejackets.

Seven fishermen on board the Njord were rescued uninjured.

However, an eighth crew member "succumbed to the effects of immersion in cold water" and drowned, the MAIB said in a June analysis of the investigation so far.

The stern trawler, which was 150 miles north-east of Peterhead, Scotland, capsized on calm seas, while processing a large haul of fish.

All eight climbed onto the upturned hull, but it sank before they could be rescued.

Since 2019 lifejackets have been mandatory at sea – unless there are other measures and a risk assessment in place.

The 2007 CMCHA was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster and the prosecution of Transco which was fined £15m for breaching health and safety laws from an explosion in Larkhall, South Lanarkshire which killed four people in December 1999.

The blast, caused by a leaking gas main, destroyed the home, leading to the deaths of Andrew and Janette Findlay and their children Stacey, 13, and Daryl, 11.

The Lord Advocate at the time used the offence of culpable homicide for the first time to prosecute Transco.  But prosecution was dismissed in August 2005 because the charge did not identify the individuals that could be construed as the controlling mind.

Legal experts said that 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. Experts recommended that a new offence of corporate killing through recklessness be put on the statute book to try and close the loophole.

Two years after the 2005 Transco case, the CMCHA which provided that an organisation could be guilty of corporate manslaughter - or in Scotland - corporate homicide where it could be shown that the way in which its activities were managed or organised caused a person's death, and amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Workplace safety charity Scottish Hazards subsequently supported the Culpable Homicide (Scotland) Bill proposed by Scottish Labour Mid Scotland and Fife MSP Claire Baker in a bid to toughen up the laws, and was aimed at giving families of individuals killed due to an employer’s recklessness or gross negligence greater legal powers to hold them accountable.

But it failed to get enough Scottish Parliament support.

When the bill was proposed in November, 2018, 17 people died on average annually in industrial incidents over the previous five years but there had not been a prosecution under the CMCHA.

The bill supporters argued that although a company can be pursued through health and safety legislation and fined, it is very difficult to convict them of culpable homicide, even when the Lord Advocate recognises the crime and wants to bring forward criminal charges.

But its opponents said that the bill as currently drafted could introduce new confusion into the way corporate responsibility for workplace fatalities is assessed, by broadening current narrow requirements too far.

The Bill fell at Stage 1 of the parliamentary process, in January, 2021 with 26 votes for and 89 against.

Then justice secretary Humza Yousaf said as the bill failed that the Scottish Government's view was the provisions in the bill "are very firmly outwith legislative competence".

He said he appreciated that those who supported the bill believed that the current criminal law was inadequate but he said the lack of prosecutions under CMCHA does not mean that it is "not fit for purpose".

He said the Scottish Government wanted to "work with the families and also other members on a bill that would help to address the issues".

Scottish Hazards said that that has not happened.

Ian Tasker, chief executive of Scottish Hazards said the CMCHA was an "abject failure" and that it does "not deliver justice for families and it is not a deterrent to discourage other negligent bosses". 

He said the Scottish Government has "failed families bereaved because of health and safety negligence by refusing to support previous proposals by Claire Baker MSP to amend the law of culpable homicide to ensure claims of homicide are treated equally, whether the act takes place in our communities or in workplaces".

He said: "Nearly three years ago Humza Yousaf, speaking against Claire Baker’s proposals, that were ultimately defeated, said he would meet with families and MSPs to discuss of a way could be round the issues related to the competence of the parliament to legislate on the proposals, that promise was never delivered.

"Far too many families continue to suffer a life time of pain and heartache from health and safety failures at work.

"The HSE report 26 work related deaths in Scotland. However, Scottish hazards is aware of a further five in the same year, two investigated by MAIB, two by police Scotland, one involving a security guard who died following an altercation with a shoplifter and another a care worker stopped death by a service user. These were investigated as acts of culpable homicide and murder respectively.

"Another unrecorded fatal injury to a worker involved a teacher who took her own life a few days before she was due to appear in court on an assault charge, following an altercation with a pupil.

"Sadly, the HSE refuse to investigate suicides related to work and we have no idea just how many workers who, driven to the depths of despair at work, they feel there is no other option other than suicide.

"Bereaved families live with the cost of health and safety failures, living with the pain and heartache for the rest of their lives. Their loved ones are stolen from them due to these failures, no longer there at Christmas or birthdays, anniversaries or other significant family events, both happy and sad. People, often in an attempt to provide come comfort will say to them time heals, this is not what the families we support tell us, their absence and the circumstances in which they were killed live with them for ever.

"When you consider their loss and the time it takes for the justice process to conclude then it is understandable that families often feel cheated by the system.

"Why? because involuntary deaths inflicted on their loved ones appears to be treated less seriously than acts of homicide elsewhere.

"Prior to the SNP coming to power, they were fully supportive of effective corporate homicide legislation, now they are silent."

The Lord Advocate, in a written response to a question about the number of convictions of corporations said that while there were no convictions under CMCHA, cases have resulted in guilty pleas to breaches of either section 2 or section 3 of the Health and Safety at Work Act 1974 or maritime health and safety legislation.

She said the court has the same sentencing powers available to them for these offences as for the offence of corporate homicide, adding that the fines issued in these cases range from £4,000 to £234,000.

"Every fatality at a place of employment or fatality that occurs as a result of a work-related activity in Scotland is investigated as a potential corporate homicide," she said. "The very nature of this category of case means that detailed and lengthy investigation, often involving technical and medical issues and expert opinion, may be required. The Work Related Death Protocol for Scotland – which has been signed by COPFS, Police Scotland (ACPOS), British Transport Police and HSE - ensures that when a work-related death occurs, a thorough, co-ordinated and multi-agency investigation takes place allowing all possible offences to be considered.

"Once reported each case is carefully considered by lawyers within the COPFS Health & Safety Investigation Unit and turns on its own facts and circumstances. Corporate homicide is considered in every work-related death reported for prosecution, and lines of investigation in connection with corporate homicide are explored regardless of whether or not such a charge was reported in connection with the death."

The Scottish Government said that when legislation was brought to the Scottish Parliament on culpable homicide in 2020, the Presiding Officer indicated this related to the reserved area of health and safety and MSPs voted against the legislation as there "was a significant risk any agreed legislation would have been subject to legal challenge in the courts".

It said that Health and Safety Executive data showed that "while the standardised rate of fatal workplace injuries in Scotland is higher than in England, it is lower than in Wales".

A Scottish Government spokesman said: “The relevant law in this area is the UK Government’s Corporate Homicide and Corporate Manslaughter Act 2007 and the Health and Safety Act 1974. While this area of law is a reserved issue, the Scottish Government supports the operation of this legislation in holding corporate bodies to account. We continue to keep all laws that are within the devolved powers of the Scottish Parliament under review.”