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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Transco Plc v. Her Majesty's Advocate (1) [2003] ScotHC HCJAC 67 (03 June 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/67.html
Cite as: 2004 SLT 41, 2004 JC 29, 2004 SCCR 1, [2003] ScotHC HCJAC 67
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JISCBAILII_CASE_SCOT_CRIME
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord MacLean Lord Osborne Lord Hamilton
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Appeal No: XC392/03 OPINION OF LORD MacLEAN in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C., J. Lake; Simpson & Marwick
Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent
3 June 2003
[1] I agree with your Lordships that the present appeal should be allowed, and in particular I concur entirely in the reasoning of Lord Hamilton for that result.|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord MacLean Lord Osborne Lord Hamilton
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Appeal No: XC392/03 OPINION OF LORD OSBORNE in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C., J. Lake; Simpson & Marwick
Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent
3 June 2003
Introduction
[2] The circumstances in which this appeal has been brought have been explained in paragraphs [27] to [34] of the Opinion of Lord Hamilton, which I gratefully adopt. During the course of the appeal hearing, elaborate and wide-ranging arguments were deployed in support of the positions of the parties, which have been of great assistance to the court. I consider that it is unnecessary for me to rehearse them here, since the nature of the submissions made may be inferred from what I have to say below about the issues which have arisen. What I intend to do in this opinion is to set forth my conclusions on the arguments addressed to us. For convenience, I shall do this under a number of headings. First, I shall deal with the nature of the crime of culpable homicide in Scots criminal law and, in particular, involuntary culpable homicide, the crime alleged in the first alternative charge. Secondly, I shall consider the nature of an incorporated company and the implications of that in the context. Thirdly, I shall consider the question of the commission of a common law crime by such a company, in particular, involuntary culpable homicide. Finally, I shall set out my conclusions on the appeal as a whole.The nature of the crime of involuntary culpable homicide
[3] Recognising that involuntary culpable homicide is a crime under Scots common law, it is necessary, first of all, to consider the fundamental nature of a common law crime, particularly with regard to criminal intent. Baron Hume in his Commentaries on the Law of Scotland Respecting Crimes, Vol.1 at pps.21-22 deals generally with the matter of dole, or mens rea. He defines it as"that corrupt and evil intention, which is essential (so the light of nature teaches, and so all authorities have said) to the guilt of any crime..... that the act must be attended with such circumstances, as indicate a corrupt and malignant disposition, a heart contemptuous of order, and regardless of social duty."
MacDonald in A Practical Treatise on the Criminal Law of Scotland, 5th ed., at p.1 states:
"The law holds a man to be punishable as a criminal whether his deed is in itself a completed crime, or is an attempt to commit crime. The deed must be overt and must be done with wicked intent.... The wicked intent is an inference to be drawn from the circumstances of the deed as well as from any explanations by the man."
In Duguid v Fraser 1942 JC 1, the court had to deal with the complications of emergency war legislation, in particular the Prices of Goods Act 1939, section 1. That occasion demanded consideration of what, if any, part mens rea had to play in offences created by such statutory provisions. Lord Justice-Clerk Cooper took the opportunity to make certain general observations on the part played by mens rea. At p.5 he said this:
"Our reports already contain many examples of cases in which it has been held that a malum prohibitum has been created by statutory enactment in such terms and under such circumstances as to impose an absolute obligation of such a kind as to entail this wider liability. In all such cases it has, I think, been the practice to insist that the Crown should show that the language, scope and intendment of the statute require that an exception should be admitted to the normal and salutary rule of our law that mens rea is an indispensable ingredient of a criminal or quasi-criminal act; and I venture to think that it would be a misfortune if the stringency of this requirement were relaxed."
More recently the important part played by mens rea in our criminal law was discussed in Ross v Her Majesty's Advocate 1991 JC 210. The court was there considering the significance of non-insane automatism. One again, the importance of mens rea was emphasised. Lord Justice-General Hope at p.213 said: "In principle it would seem that in all cases where a person lacks the evil intention which is essential to guilt of a crime he must be acquitted." He then quotes the passage already referred to from Hume. He then goes on:
"So if a person cannot form any intention at all because, for example, he is asleep or unconscious at the time, it would seem impossible to hold that he had mens rea and was guilty in the criminal sense of anything he did when he was in that state."
At p.228 Lord McCluskey said: "I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mens rea beyond a reasonable doubt." In these circumstances, one might conclude that mens rea is indeed an essential ingredient of, in particular, the common law crime of culpable homicide.
[4] Moving on from general principles, I consider next how the crime of culpable homicide has been defined, with a view to identifying what is involved as regards mens rea in relation to involuntary culpable homicide. Perhaps the starting point may be what is said in Drury v Her Majesty's Advocate 2001 SCCR 583 at p.589, where Lord Justice-General Rodger said this of culpable homicide:"As its name suggests, according to the current usage in our law (Burnett's Criminal Law, pps.26-27) the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills."
Plainly, the destruction of human life itself may be categorised as murder, or culpable homicide, or a justified and non-criminal act, depending upon the criminal intent which may or may not be involved. Writing of involuntary culpable homicide, MacDonald, op. cit., at p.100 says this:
"Third, culpable homicide may result from neglect of proper precautions, or of moderation in the doing of what is legal, or from general carelessness and neglect of duty. Here, also, the cases that have happened are out-numbered by those that may be supposed. They include every fatal accident which is not fortuitous, but results from some blameable conduct. The trend of legal development has been to draw a distinction between negligence which results in civil liability and negligence which results in criminal responsibility; and in the latter case to desiderate gross and wicked negligence or recklessness. The old rule that 'any blame is enough' is no longer valid.... With the prevalence of fast-travelling motor vehicles on the road, the tendency of the law in the case of fatal accidents is to hold the driver of the vehicle which inflicts the injury guilty of homicide, only if his conduct is notably and seriously negligent or displays utter disregard for the safety of others."
A case of the kind just referred to by MacDonald is Paton v His Majesty's Advocate 1936 JC 19, where there is to be found what has come to be regarded as a classic definition of involuntary culpable homicide. In dealing with an appeal against a conviction for culpable homicide arising out of the driving of a motor car, Lord Justice-Clerk Aitchison observed at p.22:
"The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and 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."
With the greatest of respect to the author of this dictum, it appears to me that this definition involves certain difficulties. His Lordship refers to "criminal negligence" and "criminal indifference to consequences". The use of the adjective "criminal", in an endeavour to define what is in fact involved in a particular crime, involves circularity and is therefore unprofitable. Furthermore, the word "negligence" introduces a potential for confusion. I would believe that that word "negligence" may properly be used in two senses. The first is a reference to the English tort of negligence; the second is the more general English parlance, which connotes some degree of carelessness or neglect of duty in a non-legal context. It is not clear to me in which particular sense that word is used by Lord Justice-Clerk Aitchison. The remaining features of the definition "gross or wicked ... indifference to consequences" appear to me to be more helpful. In Quinn v Cunningham 1956 JC 22, the court considered a complaint of culpable and reckless conduct, not resulting in death, but the case contains certain observations by Lord Justice-General Clyde which seem to me to be of interest in the present context. At p.24 he said:
"So far as concerns road accidents in Scotland, it is an essential element in the constitution of a crime at common law that there should be either an intention to commit a wrong or an utter disregard of what the consequences of the act in question may be so far as the public are concerned. Culpable homicide is the typical example of the latter form of crime. The essence of culpable homicide is the degree of culpa which has in fact resulted in the death. Mere culpa plus a death resulting from it does not constitute culpable homicide."
His Lordship then quoted the passage referred to already from Paton v His Majesty's Advocate. He went on:
"This represents the standard of culpability which must be established in such cases in order to constitute a crime at common law, based not upon intent, but upon reckless disregard of consequences. It is highly relevant to the present question since in the text-books furious driving or riding at common law is treated as a subheading of the crime of culpable homicide - Alison's Criminal Law, Vol.1 p.121; Hume on Crimes, Vol.1 p.192. The standard of culpability must be the same, whether its consequences are death or not."
While certain aspects of this decision have been the subject of criticism, which seems to me to be irrelevant in the present context, the passages which I have quoted cast further light on the mens rea of involuntary culpable homicide. In W. v Her Majesty's Advocate 1982 S.L.T. 420, the court considered an appeal against a conviction for culpable and reckless conduct. In the Opinion of the Court, the language used by Lord Justice-General Clyde in Quinn v Cunningham, already quoted, was approved as being "in our view well suited to application in the case of a common law crime of the type with which the appellant was charged." It was also observed that: ".... it is of the essence that there should be criminal recklessness in the sense of a total indifference to and disregard for the safety of the public." In Sutherland v Her Majesty's Advocate 1994 SCCR 80 the court considered a conviction for culpable homicide arising out of fireraising, followed by the occurrence of an explosion resulting in death. The criterion used by the trial judge in charging the jury in relation to the allegation of culpable homicide was this:
"Was the fireraising something which was done in the face of obvious risks which were or should have been appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result?"
The use of that criterion in the charge was upheld by the court on appeal. In McDowall v Her Majesty's Advocate 1998 SCCR 343, the court was concerned with an appeal against a conviction for culpable homicide arising from a road traffic incident. In defining the offence for the jury, the trial judge spoke of "reckless disregard for the safety of others" and "a complete disregard of the potential dangers or possible consequences". Apart from the fact that those directions were upheld, the case is of interest for the reason that an issue arose as to the relevance of evidence concerning the manner of the appellant's driving shortly before and shortly after the accident out of which the case arose. The court decided that that evidence was relevant. In relation to that matter Lord Justice-General Rodger said at p.349:
"In our view the fact that immediately after the accident the appellant showed utter disregard to the victims and the fact that he drove with the bonnet in an upright position are factors which the jury were entitled to take into account, along with the evidence as to his driving and the period leading up to the accident, when assessing his state of mind at the time of the accident. In particular, they are matters which the jury could consider when deciding whether at the time of the accident the appellant showed complete disregard of potential dangers and of the consequences of his driving for the public."
It appears to me from these observations that where there is an issue of involuntary culpable homicide, the resolution of the issue depends, not upon some objective assessment of the conduct of the perpetrator alone, but upon an assessment of "his state of mind at the time of the accident", in other words, an enquiry into whether he possessed the necessary criminal intent at the material time, namely a "complete disregard of potential dangers and of the consequences of his driving for the public". In Cameron v Maguire 1999 JC 63, the court was concerned with a case of the culpable and reckless discharge of a firearm. The criterion which was expressed as appropriate, which I consider equally applicable in a case where death results and the issue is one of culpable homicide, is to be found in the Opinion of the Court, delivered by Lord Marnoch. At p.66 he spoke of the test laid down in Quinn v Cunningham "namely that there should be 'an utter disregard of what the consequences of the act in question may be so far as the public are concerned' or, as re-formulated on the following page of the report, that there should be a 'recklessness so high as to involve an indifference to the consequences for the public generally'". It respectfully appears to me that those formulations possess the merit of, first, avoiding the obvious circularity evident in the definition adopted in Paton v His Majesty's Advocate, and second, the potential for confusion created by the use of the word "negligence" in that case.
[5] During the course of the argument before us, reference was made to the nature of the law of manslaughter in England. It appears to me of value to consider that law, since it possesses relevance in relation to matters with which this opinion will deal subsequently. We were informed that, in recent times there had been certain difficulties in formulating an acceptable definition of the crime of manslaughter. However, those difficulties had been resolved by the House of Lords in Regina v Adomako [1995] 1 AC 171. For the present purposes, it is unnecessary for me to summarise the facts of the case. At p.187 the Lord Chancellor, Lord Mackay of Clashfern, formulated the definition of manslaughter in this way:"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."
The nature of an incorporated company and its implications
[9] It is, I believe, indisputable that a company incorporated under the Companies Acts is a legal fiction, or an abstraction created by legal rules and the act of incorporation for reasons of practical or commercial convenience. It has no mind, it cannot itself act, it cannot itself know, it cannot intend, nor can it be wicked. Thus it cannot perform the actus reus of a crime, nor can it have the mens rea to commit such a crime in fact. The position of a company in this regard was described lucidly and in detail by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, a case on appeal to the Privy Council from the Court of Appeal of New Zealand. The facts of the case are, for the present purposes, immaterial. It is sufficient to refer to what Lord Hoffmann said at p.506 and following pages. In view of the importance of the matter to the present case, perhaps I may be forgiven for a lengthy quotation from that source:"Any proposition about a company necessarily involves a reference to a set of rules. A company exists because there is a rule (usually in a statute) which says that a persona ficta shall be deemed to exist and to have certain of the powers, rights and duties of a natural person. But there would be little sense in deeming such a persona ficta to exist unless there were also rules to tell one what acts were to count as acts of the company. It is therefore a necessary part of corporate personality that there should be rules by which acts are attributed to the company. These may be called 'the rules of attribution'.
The company's primary rules of attribution will generally be found in its constitution, typically the articles of association, and will say things such as 'for the purpose of appointing members of the board, a majority vote of the shareholders shall be a decision of the company' or 'the decisions of the board in managing the company's business shall be the decisions of the company'. There are also primary rules of attribution which are not expressly stated in the articles but implied by company law ...
These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contracts and vicarious liability in tort.
It is worth pausing at this stage to make what may seem an obvious point. Any statement about what a company has or has not done, or can or cannot do, is necessarily a reference to the rules of attribution (primary and general) as they apply to that company. Judges sometimes say that a company 'as such' cannot do anything; it must act by servants or agents. This may seem an unacceptionable, even banal remark. And of the course the meaning is usually perfectly clear. But a reference to a company 'as such' might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company.
The company's primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine it rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person 'himself', as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily imposed liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company?
One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, i.e. if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.....
Against this background of general principle, their Lordships can return to Viscount Haldane L.C. In Leonard's Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] A.C. 705 the substantive provision for which an attribution rule had to be devised was section 502 of the Merchant Shipping Act 1894...., which provided a shipowner with a defence to a claim for the loss of cargo put on board his ship if he could show that the casualty happened 'without his actual fault or privity'..... How is this rule to be applied to a company? Viscount Haldane L.C. rejected the possibility that it did not apply to companies at all or (which would have come to the same thing) that it required fault or privity attributable under the company's primary rules. Instead, guided by the language and purpose of the section, he looked for the person whose functions in the company, in relation to the cause of the casualty, were the same as those to be expected of the individual shipowner to whom the language primarily applied. Who in the company was responsible for monitoring the condition of the ship, receiving the reports of the master and ship's agents, authorising repairs etc? This person was Mr Lennard, whom Viscount Haldane L.C., at pp. 713-714, described as the 'directing mind and will' of the company. It was therefore his fault or privity which section 502 attributed to the company."
The legal rules, if any, developed to enable a company to be held liable for a common law crime in Scotland
[11] The initial question arising is whether there exist rules of attribution applicable in Scotland to enable a company to be prosecuted for a common law crime, involving an actus reus and mens rea. If the answer to that question were to be in the negative, plainly the present indictment, as regards the first alternative charge, would be incompetent. If such rules exist and are applicable in Scotland, the relevance of that part of the indictment would depend upon whether those rules have been observed in the present prosecution. [12] It is quite plain that no such rules of attribution of domestic origin exist. Accordingly, given that, in general, the different jurisdictions of the United Kingdom share a common company law, it is appropriate to look, first, at the law of England, with a view to discovering whether such rules have been developed there, and, secondly, to consider whether those rules have been incorporated into Scots law. [13] The traditional position in England was explained in Rex v Cory Brothers & Co [1927] 1 K.B. 810 at p.816. There Finlay J. said:"I take as a convenient statement of the law a passage in the judgment of Lord Denman C.J. in the first of those two cases where the Lord Chief Justice said this: 'Some dicta occur in old cases: "A corporation cannot be guilty of treason or of felony". It might be added', Lord Denman goes on, ' "of perjury, or offences against the person". The Court of Common Pleas lately held that a corporation might be sued in trespass; but nobody has sought to fix them with acts of immorality. These plainly derived their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects. A corporation which, as such, has no such duties, cannot be guilty in these cases: but they may be guilty as a body corporate of commanding acts to be done to the nuisance of the community at large.'"
However, a major landmark in the development of this area of the law can be found in Tesco Supermarkets Ltd v Nattrass [1972] AC 153. The issue in that case was not whether a corporation could be prosecuted for common law crime, but whether the manager of a store at which an offence under the Trade Descriptions Act 1968 had been committed was "another person", separate from the defendants, a body corporate, within the meaning of section 24(1) of the 1968 Act. That issue was important in the establishment by the defendants of a defence under that section. However, at p.170 and following pages Lord Reid dealt with the extent to which the position of a natural person might be identified with that of the company. There he said:
"I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."
Going on to consider how this principle might be applied, Lord Reid said at p.171:
"Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn."
At p.173, he went on:
"I think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. I have already dealt with the considerations to be applied in deciding when such a person can and when he cannot be identified by the company. I do not see how the nature of the charge can make any difference. If the guilty man was in law identifiable with the company then whether his offence was serious or venial his act was the act of the company but if he was not so identifiable then no act of his, serious or otherwise, was the act of the company itself."
"A company may be vicariously liable for the negligent acts and omissions of its servants and agents, but for a company to be criminally liable for manslaughter - on the assumption I am making that such a crime exists - it is required that the mens rea and the actus reus of manslaughter should be established not against those who acted for or in the name of the company but against those who were to be identified as the embodiment of the company itself.... I do not think the aggregation argument assists the applicants. Whether the defendant is a corporation or a personal defendant, the ingredients of manslaughter must be established by proving the necessary mens rea and actus reus of manslaughter against it or him by evidence properly be relied on against it or him. A case against a personal defendant cannot be fortified by evidence against another defendant."
"The Tesco case deserves particular scrutiny for within certain of the speeches in that case are to be found the limits of this doctrine of identification. It is this doctrine which is fundamental to the true basis of corporate criminal liability which has now to be accepted is an integral part of the Law of England."
He summed up the position thus at p.84:
"Suffice it that where a corporation, through the controlling mind of one of its agents, does an act which fulfils the prerequisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter."
"The only way in which a corporation can be liable for manslaughter is under the directing mind principle. Certainly that appears to have been the view of the Law Commission in its report No.237. Of course the consequence is that it is virtually impossible to bring a successful Prosecution against a large corporation particularly where, as here, the allegation is essentially based on a system failure.
Mr Lissack's (counsel for the Prosecution) case is that what Turner J. said in P & O, although correct at the time in the light of the then perceived state of the law, must now be reconsidered in the light of Adomako. His argument runs thus. Adomako establishes that the type of involuntary manslaughter with which this case is concerned is based on gross negligence. That is a rare species of crime because it does not involve mens rea. The test is purely objective. Accordingly it is no longer necessary to look for any directing mind in the company. It is not necessary to identify any person whose act or omission amounted to gross negligence. The company is liable if it objectively failed to reach the appropriate standard ... I do not accept Mr Lissack's submissions that manslaughter by gross negligence is an entirely objective crime and that therefore it is unnecessary to look for any directing mind in the company ... What Adomako did not do was to touch on the circumstances in which a corporation can be held liable under the criminal law for manslaughter or indeed any other offence. In my judgment Adomako left the law on corporate liability in crime undisturbed ...
There is, I accept, some attraction in the fact that gross negligence manslaughter, involving as it does an objective test rather than mens rea in the strict sense of the expression, is in some ways closer to statutory offences of the kind in the cases relied on by Mr Lissack than it is to the ordinary run of criminal offences. But I do not think this is a good reason for no longer having to look for a directing mind in the company to identify where the fault occurred. In my judgment it is still necessary to look for such a directing mind and identify whose gross negligence it is that fixes the company with criminal responsibility.
Accordingly I conclude that the doctrine of identification which is both clear, certain and established is the relevant doctrine by which a corporation may be fixed with liability for manslaughter by gross negligence ...
Given, as I have found, that the doctrine of identification is applicable to this case, the Crown accept that for GWT to be convicted of manslaughter the ingredients of the offence would have to be established against an individual before the company could be convicted."
"Mr Lissack contends that the doctrine of aggregation requires to be considered in the context of a crime of manslaughter by gross negligence following the demise, as he puts it, of recklessness. The argument is that where there is a series of management failures, each in itself venial or at least falling short of gross negligence, they may be added together, i.e. aggregated and that if they accumulatively amount to gross negligence the company is liable and may be convicted ...
The thrust of Mr Lissack's argument is, I think, that the acts of various employees of GWT might each be attributed to the company and together amount to a breach of duty owed by the company to the passengers, the culminative breach amounting to gross negligence. Thus if there is more than one person responsible for the safety system in GWT their actions may be aggregated in order to fix the company with liability.
There is no authority for the application of any doctrine of aggregation of fault in corporate manslaughter. Indeed as I have indicated the reverse is the case ... I am not persuaded that the principle of aggregation, even after the decision in Adomako has any place in the law of corporate manslaughter.
Conclusion:
The only basis on which the Prosecution may advance a case in manslaughter against the company is by identifying some person within the company whose gross negligence was that of GWT itself. The doctrine of personal liability, relevant in some cases of breach of statutory duty, is not applicable. The law is, in my judgment, clear and well settled, a view which I believe is shared by the Law Commission. It is not for judges to change the law; that is a matter for Parliament. Were the law otherwise, and the Crown entitled to advance its case on the basis of personal liability of the company a conviction, assuming gross negligence to be proved, would mark public abhorrence of a slip-shod safety system leading to seven deaths and many injured victims. The sanction would be a financial penalty. There is, however, a further charge on the indictment which does not face the same obstacle. It is under section 33 of the Health & Safety at Work Act 1974 and alleges failure to conduct the Company in such a way as to ensure that members of the public were not exposed to safety risks. The Court's powers on conviction are just the same as with manslaughter ... an unlimited fine. Furthermore, in seeking to establish that case the Crown alleges precisely the same facts as in the manslaughter offences. My ruling, therefore (which effectively means that the Crown cannot proceed with manslaughter) has little practical effect save to eliminate the opprobrium that would follow a manslaughter conviction. There are many who say that the present state of the law is unsatisfactory and that the present obstacle to prosecuting large corporations for manslaughter should be removed. However, if the law is to be changed it is up to Parliament to do so."
"The observations of Lord Reid on the position of a company vis-à-vis its employees, and the limited circumstances in which the 'mind' of an employee can be said to be the 'mind' of the company (Tesco Supermarkets v Nattrass) are relevant to this point."
From this brief reference to Tesco Supermarkets v Nattrass, I conclude that the court was satisfied that the principles of identification set forth in that case could properly be seen as part of the law of Scotland, although, it has to be recognised that the matter was not apparently the subject of controversy. A passage in the opinion of Lord Kissen leads to the same conclusion.
[20] The issue with which I am currently concerned was the subject of more active consideration in Dean v John Menzies (Holdings) Ltd 1981 JC 23. The question before the court was whether a complaint against a corporate body alleging shameless and indecent conduct, taking the form of the exposing for sale of allegedly indecent and obscene magazines, was competent. The decision of the majority of the court, to the effect that a body corporate was not, at common law, capable of exhibiting the human characteristics of shamelessness and indecent conduct, did not involve any necessary consideration of whether the principle of identification, already discussed, was part of the law of Scotland. However, Lord Cameron, in a dissenting opinion, considered in detail the rules of law relating to a company's capacity to exercise a conscious mind and will. The cases which he considered in particular were Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd and Tesco Supermarkets Ltd. v Nattrass. At p.31, Lord Cameron said this:"No doubt the decision in the case of Tesco is one concerned with English criminal law, but the statute under which the prosecution was brought is a United Kingdom statute effective in Scotland and the judgment and opinions in the case, if technically not binding in this country, are necessarily to be treated with the highest respect. One thing may be taken as clear, that in England a charge of common law crime may be competently laid against a company, and while I agree that there is no reason why the criminal jurisprudence of the two countries should necessarily fall into line, at the same time I see no reason in principle why a different rule of law should operate in Scotland, the same statute governing the structure, powers and functioning of limited companies in both countries. In both countries the rules and principles governing the civil liabilities of companies are the same; in both countries the rules and principles governing criminal liability in respect of statutory offences are the same and it is therefore not easy to see upon what principle of Scots criminal law a company created by a statute should not be amenable to the common law in matters criminal ... In my opinion the competency of the present charge is not open to successful challenge on the broad general principle that a company cannot in Scots law be guilty of a common law offence."
It appears to me that, having regard to the ground of decision of the majority of the court in this case, there is nothing in the decision itself which conflicts with the observations of Lord Cameron, which I have just quoted, with which I respectfully agree.
[21] In my opinion, the issue has been put beyond any doubt in Purcell Meats (Scotland) Ltd v McLeod 1986 S.C.C.R. 672. In this decision the court, presided over by Lord Justice Clerk Ross, held that it was competent to charge a limited company with the common law crime of attempted fraud, even although the crime required mens rea. It is quite plain from the short opinion of the court that the principle of identification, involving the directing mind and will of a company, explained by Lord Reid in Tesco Ltd v Nattrass, was assumed by then to be part of the law of Scotland. [22] Against the background of decisions which I have explained, the conclusion which I reach is that the principle of identification or attribution developed in the law of England relating to the criminal liability of corporate bodies is now to be seen as part of the law of Scotland. In particular, I consider that, in appropriate circumstances, a corporate body in Scotland might be convicted of culpable homicide, a crime which, in my view requires the element of mens rea, but only upon the basis of the principle of identification mentioned.Conclusions
[23] In the light of the views concerning the nature of corporate bodies expressed by Lord Reid in Tesco Supermarkets Ltd v Nattrass, by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission, and elsewhere, it is plain that a corporate body and, in particular, a company incorporated under the Companies Act has no existence save that which is reflected in the rules of law formulated to create, or elaborate the nature of a fictional legal persona. In my opinion, it is an obvious consequence of that state of affairs that no company can possess the necessary mens rea for the commission of a common law crime in Scotland; since a company has no mind, it cannot have a guilty mind. In that state of affairs, the law has developed rules under which this problem, concerning the establishment of criminal responsibility for common law crimes against a company, can be surmounted. In England, the problem has been overcome by the attribution to the company of the necessary mens rea in certain circumstances. It is a feature of those rules that the attribution of mens rea to the company must have, as its basis, the reality of mens rea possessed in fact by a persona, which is capable of so doing. The only such persona that there can be is a natural person, or, it may be, more than one such person, who, each and all, possess the necessary state of mind. As Lord Reid put it in Tesco Supermarkets Ltd v Nattrass, at p.170:"He is an embodiment of the company or one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company."
It appears to me that the clear rules concerning these matters, developed in England and now accepted in Scots law, demand that the person who is possessed of the guilty mind must occupy such a position in the control of the company that they are capable of being characterised as its directing mind and will, in relation to the subject-matter of the action in question, responsible to no superior in the company and charged with that responsibility himself, before the rules can operate.
[24] In this case, the Crown has accepted that it cannot identify any particular natural person in the appellant's organisation possessing such a status and also the necessary guilty mind. It sought to persuade this court to extend the rules of attribution to embrace the "committees and posts" referred to in the indictment as the directing mind and will of the appellant. No authority was identified to support that approach. In my judgment the Crown's acceptance of the factual position described is fatal to its case in relation to the first alternative charge in the indictment. "Committees and posts", in my opinion, are abstractions having no existence apart from their unnamed occupants. Thus, no committee, or post, can possess a guilty mind, or mens rea, for the same reason that an incorporated company cannot do so. In this situation, I conclude that the accepted rules of attribution operating in this area of the law cannot operate upon the basis that the directing mind and will of the company is to be found in a committee or post, quite simply because there is nothing in such abstractions which can be attributed to the company itself under those rules. In my opinion, the Crown's argument simply fails to recognise and accept the limits of the existing rules of attribution. It is quite clear that the first alternative charge has not been framed in such a way as to accord with those existing rules and, in my opinion, for that reason, it is irrelevant. In substance, the Crown's approach amounts, in my view, to an invocation of the "principle of aggregation" rejected in Her Majesty's Coroner for East Kent, ex parte Spooner, under which the faults of a number of different individuals, none of whose faults would individually have amounted to the mental element of culpable homicide, are to be aggregated, so that, in their totality, they might have amounted to that element. In my opinion, the Crown's submissions amounted to a valiant but vain attempt to propel this court in the direction of judicial legislation which would be quite illegitimate. [25] As has been observed elsewhere, the financial penalties already available on conviction on indictment under the provisions of the Health & Safety at Work Act 1974, which have been invoked in the second alternative charge in the present indictment are unlimited. It might be thought that the availability of such penalties on conviction would provide sufficient powers for a court to do justice in a case such as the present one. If, however, Parliament considers that a corporate body, in circumstances such as the present, should be subjected, not only to potentially unlimited financial penalties, but also to the opprobrium attaching to a conviction for culpable homicide, then it must legislate, so that that end may be achieved in a set of circumstances such as those facing the Crown in this case. Having regard to the conclusions which I have formed, the issues raised by the appellant relating to Article 7 of the European Convention on Human Rights and Fundamental Freedoms are academic. On them I therefore express no opinion. [26] In all these circumstances, I agree that the present appeal should be allowed and that the first alternative charge must be dismissed as irrelevant.|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord MacLean Lord Osborne Lord Hamilton
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Appeal No: XC392/03 OPINION OF LORD HAMILTON in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C., J. Lake; Simpson & Marwick
Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent
3 June 2003
[27] On 22 December 1999 there occurred in Larkhall, Lanarkshire a massive explosion which, apart from causing other damage, completely destroyed the dwellinghouse at No. 42 Carlyle Road there. All four occupants of that dwellinghouse, including two children, were killed. [28] The appellant is a company incorporated under the Companies Acts. It has, since at least 1986, had certain functions and responsibilities for the transmission and distribution of gas in an area which includes Larkhall. [29] The Lord Advocate has served on the appellant an indictment in which it is charged, in relation to the explosion on 22 December and the deaths of the four individuals, with, in the first alternative, culpable homicide and, in the second alternative, a contravention of sections 3 and 33(1) of the Health and Safety at Work Act 1974. The appellant in response presented, first, a minute of notice under section 72 of the Criminal Procedure (Scotland) Act 1995 in which it challenged the competency, relevancy and specification of the charges and, second, a devolution minute in which on various grounds it maintained that, if the prosecution proceeded to trial, the Lord Advocate would be acting incompatibly with the appellant's rights under certain Articles of the European Convention on Human Rights and Fundamental Freedoms. These minutes came before a single judge of this court at a preliminary diet. At the hearing the complaints of lack of specification were not insisted in. The challenges in respect of competency and relevancy were confined to the first alternative charge, that of culpable homicide. After hearing parties the single judge refused to dismiss the indictment on the grounds of either competency or relevancy. He also refused to do dismiss it on the ground stated in the devolution minute. Against these decisions the appellant has appealed. [30] In the course of the hearing of the appeal it became apparent that the whole matters in issue could not be dealt with in the time allotted. In the event the court decided with the consent of parties that the issues raised in the devolution minute should be postponed for later consideration. This hearing was accordingly confined to the issues of competency and relevancy. [31] It is important at the outset to make plain, for the benefit of those who may not be wholly familiar with legal expressions, what "competency" and "relevancy" mean in the present context. In substance and effect the contention that the charge of culpable homicide was "incompetent" was that, under the existing law of Scotland, a non-natural person such as the appellant could not in any circumstances be guilty of the common law crime of culpable homicide; the contention that the charge was "irrelevant" was that the allegation set forth in the first alternative charge, as properly interpreted, did not disclose circumstances which, if proved, would amount, under the existing law of Scotland, to the commission by the non-natural appellant of the common law crime of culpable homicide. These contentions raised purely legal issues to be decided by this court on the basis of the existing law. Neither these contentions nor the court's decisions upon them question the tragic character of the loss of life on 22 December 1999. [32] To put the legal issues in context it is necessary to summarise and analyse the complex averments contained in the first alternative charge. The charge opens by reference to a period of time extending from 24 August 1986 to 22 December 1999 (referred to thereafter as "the period of time"). The charge continues that during that period of time the appellant had premises at various places in the United Kingdom, including at Carlyle Road, Larkhall, and that it was a public gas transporter with certain duties and responsibilities with respect to the development and maintenance of a safe system of transmission and distribution of gas through pipes for use in, inter alia, domestic premises. There then follow a series of averments of knowledge (and in one instance of awareness) by the appellant of various matters; the substance of these matters is alleged knowledge by the appellant of (1) the risks, including the risks to human life and limb, arising from corrosion of ductile iron pipes when used for the distribution of gas at intermediate or medium pressure, (2) the lessons to be learned from the investigations into certain earlier major gas explosions and (3) the increased risks arising when distribution main pipes of the kind indicated were located underground near buildings, including domestic premises, particularly as such pipelines aged. That series of averments concludes -"being aware over the said period of time of the need to address said risks in an effective manner through the management of safety, risk assessment and an adequate and co-ordinated safety strategy in relation to the use, continued use and replacement of ductile iron pipes...".
"YOU TRANSCO PLC DID over the said period of time
through a number of engineering and other management committees and posts established within your organisation to take decisions on all issues relating to the safe transportation and distribution of gas through pipes and, in particular, the safe distribution of gas through medium pressure ductile iron pipes, namely, ....".
There are then named four collective bodies, two of them "Committees", one a "Group" and the fourth a "Team" and three "posts" each being that of a "Director" of an aspect of the appellant's operations. The charge continues -
"in the face of said risks of which you were aware and which should have been guarded against, and with a complete and utter disregard for the safety of the public and, in particular for the safety of [the four deceased]
fail to devise, institute, implement or maintain any adequate or effective safety policy or strategy for the use, maintenance, inspection, repair or replacement of ductile iron pipes in that....".
There then follow, in two chapters, a series of detailed alleged failures on the part of the appellant directed, in the first place, to its systems for recording, processing and reviewing information about gas distribution pipes, and in particular the medium pressure ductile iron main distribution pipe passing through the garden ground of 42 Carlyle Road and, in the second place, to its alleged omission, against knowledge that ductile iron could fail and allow gas to escape as a result of through wall graphite corrosion when laid in certain soil types within ten years of its being laid, to devise and implement an appropriate management safety policy to avoid the attendant risks. These alleged failures are averred to have had the consequence that the main distribution pipe passing through Carlyle Road was in an extensively corroded condition allowing gas to escape into the foundations of No. 42, where it ignited causing the complete destruction of that house and the personal injuries to the four occupants from which they died immediately "and you did kill them".
[34] At this stage a number of features of the charge may be noticed. First, the knowledge which the Crown offers to prove is "knowledge" of the appellant itself, that is, of the non-natural corporate body, not the knowledge of any particular individual or individuals within the appellant's organisation. Second, that "knowledge" is in some instances said to have existed throughout the period from 24 August 1986 to 22 December 1999, in one instance acquired following investigation into particular other explosions (of which one occurred in 1988 and another in 1995), and otherwise acquired at some unspecified time or times. Third, it is in the face of risks of which it is said that the appellant, the company, was "aware" and "with a complete and utter disregard for the safety of the public and in particular for the safety of [the four deceased]" that the particular failures leading to the explosion and deaths took place. Fourth, the failures for which the appellant is sought to be made criminally liable are "through a number of engineering and other management committees and posts established within your organisation to take decisions on all issues relating to the safe transportation and distribution of gas through pipes", that is, the instrument of the appellant's failures throughout the relevant period is the identified committees and posts. Fifth, no human individual or individuals (other than the deceased) is mentioned in the charge. The "posts" were no doubt held by particular individuals from time to time; the "committees" were no doubt also comprised of individuals, though their composition, it may be taken, varied over time. Finally, and importantly, it is not suggested on the face of the charge that any individual or individuals or any group of individuals acting collectively within the appellant's organisation was, against knowledge had by him, her or them personally and conduct in the light of that knowledge, guilty of the culpable homicide of the deceased. In the course of the hearing the advocate depute confirmed that, having regard to the evidence available to the Crown, no such charge could be brought against any natural person or persons. [35] It is first necessary to say something about the nature of culpable homicide in the law of Scotland. It is a crime at common law and has had a long history. It is unlawful killing of a criminal kind in circumstances where the crime does not amount to murder. It can occur in a wide variety of circumstances. Some classification of these circumstances has been attempted. The present case concerns the third of three kinds of culpable homicide identified in MacDonald - Criminal Law of Scotland (5th ed.) at p.96, where that kind is described as "homicide from negligence, or from rashness in the performance of lawful duty". The learned authors of MacDonald cite in support of their propositions passages from Hume's Commentaries and Alison - Principles. In Hume (Bell's Ed.) Vol.1 pps.233-4 a tripartite classification is also made, though the kind mentioned third in MacDonald is referred to first in Hume. At p.233 Hume says:"Culpable Homicide appears to be of several kinds and degrees; and these are ground in different reasons.
1. It has already been mentioned, and it does not seem to stand in need of further illustration, that it is culpable homicide, where slaughter follows on the doing even of a lawful act; if it is done without that caution and circumspection which may serve to prevent harm to others."
The reference there to what "has already been mentioned" takes one back to an earlier passage in Hume's chapter on Homicide. At pps.192-3 he says:
"Last of all, some punishment is due, though the slaughter happened in the performance even of a lawful act, if there be great heedlessness and indiscretion, or a want of due caution and circumspection, in the way of doing the thing: As if a man leave his fowling-piece loaded, and afterwards kill in trying the lock, having forgot the condition in which he left the piece: Or if in driving any carriage through the streets of a town, the driver quit his horses, and they run off with the carriage, and a passenger is killed: Or if workmen on the roof of a building by the side of a highway throw down slates or rubbish, without timely warning to the passenger. In all these instances, there is a want of that serious and considerate regard to the safety of one's neighbour, which justly makes one answerable for the consequences and punishable to such an extent as may serve to correct so faulty a habit of mind, in one's self or others."
Certain other illustrations are then given. Sometimes culpable homicide of this kind has been referred to as "lawful act" culpable homicide to distinguish it from "unlawful act" culpable homicide, such as where a person unforeseeably dies as a result of an assault. But it is plain that culpable homicide of the former kind can be committed not only where some lawful duty is performed in a culpable way but also where in any circumstances a person acts or fails to act with the requisite degree of culpability and death results. Alison - Principles at p.113 describes the general principles as applying to "acts, either of duty or amusement,...".
[36] The degree of culpability required for the purposes of culpable homicide of this kind has, it seems, changed over time. However, by the fourth decade of the twentieth century the modern test had been firmly established. In Paton v H M Advocate 1936 JC 19, where the driver of a motor car was charged with that offence, Lord Justice-Clerk Aitchison at p.22 observed:"...it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at least analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved."
This standard was accepted and applied by Lord Justice-Clerk Thomson in Dunn v H M Advocate 1960 J.C. 55 at p.59, the other members of the court concurring.
[37] There may be some difficulty in regarding Lord Justice-Clerk Aitchison's observation as a comprehensive definition - not least because of the circularity which arises from the use (twice) of the adjective "criminal" in the definition of the crime. But it does at least point not only to a degree of want of care which is grave but also to a state of mind on the part of the accused which is "wicked" or amounts, or is equivalent, to a complete indifference to the consequences of his conduct. These latter aspects reflect the mental element which since Hume has been recognised as a necessary ingredient of this crime, albeit the degree of blameworthiness has become greater. More recently in McDowall v H M Advocate 1998 SCCR 343 (another case of culpable homicide in the course of driving a motor car) the court required to consider the question whether evidence of conduct on the part of the driver occurring before and after the events which immediately gave rise to the impact, was relevant to proof of the charge. It held that such evidence was relevant. Its ground for doing so was that such evidence could, along with evidence as to the manner of driving, be a basis for drawing inferences about the appellant's state of mind at the time of the accident. At p.349 C-D Lord Justice-General Rodger, delivering the Opinion of the Court, said:"In our view, the fact that immediately after the accident the appellant showed utter disregard for the victims and the fact that he drove with the bonnet in an upright position are factors which the jury were entitled to take into account, along with the evidence as to his driving in the period leading up to the accident, when assessing his state of mind at the time of the accident. In particular, they are matters which the jury could consider when deciding whether at the time of the accident the appellant showed complete disregard of potential dangers and of the consequences of his driving for the public."
"There is nothing in the language of section 2 as amended to suggest an intention on the part of Parliament to penalise thereunder only a course of driving embarked upon wilfully or deliberately in the face of known risks of a material kind. Inquiry into the state of knowledge of a particular driver accused of the offence created by the section as amended, and into his intention at the time, is not required at all. The statute directs attention to the quality of the driving in fact but not to the state of mind or intention of the driver."
That conclusion rejected the submission for the respondent accused that "no man can be said to drive 'recklessly' unless it is shown that he actually knew of certain material risks in driving in a particular way and nevertheless elected to drive in that way with complete indifference to the possible consequences." While the court's conclusion on that matter is perfectly comprehensible in the context of a statutory provision designed to regulate the conduct of drivers on the public road, it is not, in my view, a safe guide to the essential features of the common law crime of culpable homicide. The contrast between the test for culpable homicide and that for contravention of the statutory offence (as then formulated) of causing death by reckless driving is noted by Lord Justice-Clerk Thomson in Dunn v HM Advocate at p.59 where he concludes that
"it does not admit of doubt that the burden on the Crown in a prosecution [under the statutory provision] is not so exacting as in one where culpable homicide is charged".
In so far as the reasoning in Gizzi v Tudhope 1982 S.C.C.R. 442 may tend to suggest (in the context of non-fatal conduct) that statutory and common law tests are interchangeable, I respectfully question that reasoning. (In this regard, see also Cameron v Maguire 1999 JC 63).
[40] Even less safe is reliance on the test under the English law (as developed) of manslaughter. I enter this field with considerable hesitation; but, since it was canvassed fully before us, I make a few observations on it. The English law of involuntary manslaughter has, it seems, undergone various developments over time. In R v Adomako [1995] 1 AC 171 the House of Lords followed the approach of the Court of Appeal in R v Bateman (1925) 19 Crim. App. R. 8 and of the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576 but disapproved the approach of the House of Lords in R v Seymour (Edward) [1983] 2 A.C. 493 and commented to some extent adversely on the approach of the House of Lords in R v Lawrence (Stephen) [1982] A.C. 510. The leading speech in Adomako was given by Lord Mackay of Clashfern, L.C. At p.187 his Lordship described the crime of involuntary manslaughter in terms which, at least on one reading, might appear to depend wholly on objective standards of conduct without any need for reference to the actual mental state of the accused. [41] Before the single judge the Crown sought to rely on Adomako for the proposition that mens rea played no part in culpable homicide of the kind with which the present case is concerned. That judge, however, did not adopt so extreme a proposition, acknowledging that what was actually in the mind of the person charged would be relevant to whether or not that person had committed that crime. The position of the advocate depute before us was that mens rea played some part, though only a restricted part. Thus, he conceded, that where, for example, the culpable homicide was said to have been committed in the course of driving a motor car, it would be relevant to consider not only the quality of the driving, viewed objectively, but also other circumstances, such as the onset of a hypoglycaemic attack or coercion of the accused by another, which might bear upon the accused's state of mind and so upon his guilt or innocence; but generally, he argued, the quality of the conduct, viewed objectively, was the critical matter upon which it was necessary to focus. The advocate depute also sought to draw a distinction between mens rea as it might be relevant to crimes of intent, such as assault and theft, and mens rea in the context of culpable homicide by neglect; in the former case the evidence bearing on the actus reus might be neutral as to the requisite mens rea; in the latter it would not. [42] It is a general requirement of the law of Scotland, with rare, if any, exceptions, that a common law crime can be committed only where the requisite mental element exists. In Hume (p.21) that mental element is called "dole" - "that corrupt and evil intention which is essential (so the light of nature teaches, and so all authorities have said) to the guilt of any crime". Hume continues (pps.21-2) -"Now, in delivering this precept, those authorities are not to be understood in this sense, as if it were always necessary for the prosecutor to bring evidence of an intention to do the very thing that has been done, and to do it out of enmity to the individual who has been injured. In this more favourable sense to the prisoner, the maxim cannot be received into the law; for it would screen many great offenders from the due punishment of their transgressions. And I think it is only true in this looser and more general, but a practical and a reasonable sense ....that the act must be attended with such circumstances, as indicate a corrupt and malignant disposition, a heart contemptuous of order, and regardless of social duty."
MacDonald (at p.1), where the reference is to "wicked intent", is in substance to the same effect. Lord Justice-Clerk Cooper in Duguid v Fraser 1942 JC 1 at p.5, while recognising that statute might in particular instances make exceptions, referred to "the normal and salutary rule of our law that mens rea is an indispensable ingredient of a criminal or quasi-criminal act; and I venture to think that it would be a misfortune if the stringency of this requirement were relaxed". Observations to the same effect are to be found in the opinions of the judges in the five judge case of Ross v H M Advocate 1991 JC 210, particularly per Lord Justice-General Hope at p.217 and Lord McCluskey at p.227.
[43] The nature of the requisite mens rea will differ as between one crime and another; the evidential material which will be necessary or apt to prove (or to negate) the requisite mens rea will also vary. Evidential differences may also arise where the actus reus of the crime is an act of commission as against conduct by omission. [44] In the present case the alleged actus reus is in substance a series of failures, that is, omissions to take steps which, it is alleged, ought to have been taken. The law, even in the criminal sphere, imposes in some circumstances a requirement of "due caution and circumspection", of "serious and considerate regard to the safety of one's neighbour" (Hume pps.192-3), the want of which may, if death results, amount to the crime of culpable homicide. That want of care is a mental state of the accused. Its existence may to a substantial extent be capable of proof by evidence of external factors, including inferences from a comparison of what the accused did or failed to do against standards of conduct to be expected of persons carrying on operations of the relevant kind. This may be particularly so where the conduct complained of is not some positive act but is inaction in circumstances where there was allegedly a duty to act. Thus the primary evidential focus may in some cases be largely, or perhaps wholly, on external factors. But a necessary element in proof of the crime of culpable homicide will be what inferences, if any, can properly be drawn from such primary evidence as to the state of mind of the particular accused. [45] Given the advocate depute's departure from the position adopted by the Crown before the single judge, it is probably unnecessary for the purposes of a decision in this case to elaborate upon the necessary content of the mens rea for culpable homicide in the present circumstances. It is sufficient to hold that the crime cannot be committed without proof of a requisite mens rea on the part of the accused. In a case such as the present the state of knowledge of the accused is clearly critical. That is of importance in considering whether, and if so how, a body corporate can commit this common law crime. [46] The criminal law of Scotland as discussed in institutional writings is essentially concerned with the amenability to that law of individuals. However, as the activities of corporate bodies and other non-natural persons have come to impinge more widely on society, the amenability of such non-natural persons to the criminal law has, subject to certain restrictions, come to be recognised. Where the criminal offence was one created by statute and Parliament thought fit to include bodies corporate or like bodies among the persons subject to the statutory provisions, that was ordinarily done by including such bodies within the definition of the "persons" so subject either specifically, as in the Merchandise Marks Act 1862, or by invoking the definition of that expression in the Interpretation Act 1889 (and its subsequent re-enactment). Parliament has at no stage provided in terms that a body corporate can commit in Scotland a common law crime. Development in this field has been left to the court. While there are important, and in some instances striking, differences between the criminal law of Scotland and that of England and Wales, developments in the latter jurisdiction have had an influence in Scotland in the field of corporate amenability to the criminal law, largely because of the essential identity in the two jurisdictions of the general concepts of company law. [47] An important milestone in the development of English law in this field was the decision of the House of Lords in Tesco Ltd v Nattrass [1972] AC 153. The case was itself concerned with the interpretation of section 24(1)(a) of the Trade Descriptions Act 1968, and in particular with whether, for the purposes of the statutory defence provided by that section, the local manager of the appellant's supermarket store was "another person", that is, a person other than the appellant company. Their Lordships held that he was. While the case was itself concerned with the interpretation of a specific statutory provision relevant to the statutory offence, their Lordships addressed in some detail issues bearing on the amenability of corporate bodies to the criminal law. Their views have been influential in Scotland and so require consideration in the present context. These views were expressed against a background of earlier case law, but I find it unnecessary in the present context to trace in detail that prior history. [48] In Tesco Ltd v Nattrass Lord Reid, having made certain observations about the approach until then taken by the courts to the construction of statutory provisions creating criminal offences of which a company might be guilty, turned at p.170 to the issue of "which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company". He said:"I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."
Having considered Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] A.C. 705 (where Viscount Haldane, L.C. , had, in a civil case concerned with whether there had been "actual fault or privity" on the part of a corporate owner of a ship, used the concept of "the directing mind" / "active and directing will" of a company) and H.L. Bolton (Engineering) Co Ltd v T.J. Graham & Sons Ltd [1957] 1 Q.B. 159 (where Denning, L.J. had used the expression "the directing mind and will of the company"), Lord Reid continued at p.171:
"Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn."
He went on to disapprove in this context of the phrase "alter ego", adding -
"The person who speaks and acts as the company is not alter. He is identified with the company."
Having discussed and disapproved of certain earlier judicial observations, Lord Reid continued at p.173:
"I think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. I have already dealt with the considerations to be applied in deciding when such a person can and when he cannot be identified with the company. I do not see how the nature of the charge can make any difference. If the guilty man was in law identifiable with the company then whether his offence was serious or venial his act was the act of the company but if he was not so identifiable then no act of his, serious or otherwise, was the act of the company itself."
Lord Morris of Borth-y-Gest, having referred to Lennard's, spoke at p.180 also of "those who may personify 'the directing mind and will' of the company".
[49] Viscount Dilhorne, having referred to Lennard's and to H.L. Bolton, observed at p.187:"If, when Denning L.J. referred to directors and managers representing the directing mind and will of the company, he meant, as I think he did, those who constitute the directing mind and will, I agree with his approach."
Referring to passages from these two cases, he added:
"These passages, I think, clearly indicate that one has in relation to a company to determine who is or who are, for it may be more than one, in actual control of the operations of the company, and the answer to be given to that question may vary from company to company depending on its organisation."
"Having regard to what Lord Reid said in that passage we are of opinion in the present case that it will only be once the facts have emerged that it will be possible to conclude whether the persons by whose hands the particular acts were performed were of such a status and at such a level in the company's employment that it would be open to the sheriff to draw the conclusion that the facts fell to be regarded as acts of the company rather than acts of the individual."
In the event that prosecution, so we were informed, was not pressed to a conclusion. However, it is plain that the court was in principle prepared to accept that a corporate body could, if the basis of attribution discussed in Tesco Ltd v Nattrass was established, be convicted of a common law crime - or at least of attempted fraud.
[55] At the outset of his presentation Mr Jones for the appellant made a submission to the effect that Scots law had not developed a legal fiction by the application of which the present appellant could be held guilty of the common law crime of culpable homicide. But, as the submission was ultimately developed, the proposition came to be that it was questionable under the present law of Scotland whether a corporate body could in any circumstances be found so guilty, no judicial determination to that effect having hitherto been made. If it could be found so guilty, that, so the submission ran, could only be on the basis that, company law being the same in Scots law as under the law of England and Wales, the court were to recognise that corporate criminal responsibility could exist for common law crimes, including culpable homicide, on the basis of the "directing mind and will" concept. It was acknowledged that under English law it had now been recognised that a company could, on that basis, be held guilty of manslaughter (P & O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72 - see also R. v H.M. Coroner for East Kent, ex parte Spooner (1989) 88 Cr. App. R. 10, per Bingham L.J. at p.16; Attorney General's Reference (No.2 of 1999) [2000] QB 796). [56] Whether a company can, according to the existing law of Scotland, be guilty of a common law crime, and in particular of the common law crime of culpable homicide, is a matter of competency which the court must address whatever the attitude adopted by parties in a particular case before it. Although, so far as drawn to our attention, no non-natural person has previously been indicted in Scotland on a charge of culpable homicide, I am satisfied that, as a matter of principle, such a charge can competently be brought against such a person. Provided that the law has, on some intelligible and recognised basis, acknowledged a mode by which the relevant human characteristics of the actus reus and the mens rea of a particular common law crime can be attributed to a corporate body, I see no reason in principle, and as a matter of orderly and foreseeable development of the law, why such a body should not be amenable to the criminal law. There are already indications that Scots law has been moving along this path. In Purcell Meats (Scotland) Ltd v McLeod the court, without apparent difficulty, proceeded on the basis that a company could be guilty of the common law crime of attempted fraud. In Dean v John Menzies (Holdings) Ltd, while the majority were of the view that the complaint libelling shameless indecency was incompetent, they did not decide the more general question of whether a company could competently be prosecuted for a common law crime; Lord Cameron, in a powerful dissenting opinion, expressed the view that a company could be guilty of a common law offence. [57] The proviso in relation to a recognised mode of attribution is, however, critical. A company can only be guilty of a common law crime such as culpable homicide where the relative attribution can be made. An indictment directed against a corporate body will, in so far as it charges a common law crime, accordingly be sustainable only if it includes relevant averments which, if proved, would establish the relative attribution. [58] In modern times there has, against the background of a number of disasters involving the tragic loss of many lives, been much public concern about whether and, if so, on what basis a body corporate might be held criminally responsible for such deaths. In Attorney General's Reference (No.2 of 1999) three theories, said in argument to have been earlier identified in another context by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, were canvassed as the bases on which criminal responsibility might be found. These theories were (1) liability through the application of identification, (2) vicarious liability and (3) personal liability. The concept of "aggregation" was also noticed. [59] In Attorney General's Reference (No.2 of 1999) it was not argued that, in relation to the crime of manslaughter, the theory of vicarious liability could properly be applied; it was argued, considerable reliance being placed on Adomako, that the theory of personal liability could and should be applied, but that argument was rejected by the Court of Appeal. Before this court the advocate depute did not advance either the vicarious liability or the personal liability theory. The Crown's contention was directed to the theory of "identification" and to the application of the requirements of that theory (as already laid down or as might reasonably be developed) to the present indictment. That theory is essentially that discussed in Tesco Ltd v Nattrass. Accordingly, for the purposes of this case, the issue became whether these requirements were satisfied. [60] On this aspect Mr Jones submitted that the first alternative charge, properly construed, did not disclose an application of the identification theory of attribution. The charge did not specify, by name or otherwise, any individual who could be identified as the controlling mind and will of the appellant who, with the requisite knowledge, acted or failed to act in a way which could infer commission of the alleged crime of culpable homicide. The inability by the Crown to meet the relative attribution test was confirmed by its acknowledgement before the single judge that there was no particular human being who had held or now holds a position within the appellant's organisation who could have been or could now be charged with the culpable homicide of the deceased. The indictment referred to a number of committees and posts established within the appellant's organisation and to knowledge said to have been had throughout or from certain times within a period commencing in August 1986 and ending in December 1999. But it was plain that the "knowledge" said to have been acquired, against which the alleged failures to act fell to be judged, was "knowledge" of the company, not knowledge of any individual or individuals engaged within the company. It was accordingly obvious that the Crown necessarily sought to rely upon an accumulation of states of mind of separate individuals at various stages throughout the thirteen years in question and of failures to act at various times over that period or a substantial part of it, and to attribute that accumulated knowledge and conduct to the corporate appellant. That approach was wholly inconsistent with the identification theory. It amounted to "aggregation", an approach which in England had been rejected (Attorney General's Reference (No.2 of 1999)). The situation was compounded by the Crown's reliance not simply on "posts" (and presumably therefore the individuals from time to time holding such posts) but also on "committees" which necessarily were comprised at any time of a number of individuals whose knowledge and whose conduct, even against mutually held knowledge, might be different. Some members of a committee might have dissented from a majority decision on some relevant matter. It was understood that in total more than 150 individuals were involved. The single judge had erred in failing to recognise that the Crown approach necessarily amounted to "aggregation" and in describing the accumulation of knowledge and conduct as "simply an inevitable result of the existence of the corporate veil"; the concept of the "corporate veil" was concerned with a quite different matter, namely, the relationship between a company and its shareholders. If the court were to hold the first alternative charge to be competent and relevant, it would not amount to a foreseeable development of the law but to a declaration of criminality of conduct which at the time it occurred was not criminal. As such it would be an infringement of the appellant's rights under Article 7 of the European Convention of Human Rights and Fundamental Freedoms. Reference was made to X Ltd and Y v United Kingdom (1982) D.R. 28, 77, S.W. & C.R. v United Kingdom (1995) 21 E.H.R.R. 363 and Kokkanis v Greece (1993) 17 E.H.R.R. 397. [61] On this aspect the advocate depute in response emphasised that the Crown relied on the principles discussed in the speeches in Tesco Ltd v Nattrass. Their Lordships there had recognised that, as regards the directing mind and will of an incorporated company, that was in the first instance to be found in the collective decision-making of the board of directors with a possibility that in relation to the performance of certain functions the board might delegate responsibility to an individual or individuals or to a collective group of individuals such that the directing mind and will in relation to the discharge of those functions were to be found in the delegates. In the present case the Crown offered to prove that all matters in relation to safe transportation of gas through pipes had been duly delegated to a number of specified committees and posts such that the directing mind and will of the appellant company was identified with the decision-making of those various delegate bodies. It was of no significance that any decision of the board of directors or of any delegate committee was unanimous or by a majority. The identification principle discussed in Tesco Ltd v Nattrass did not require that there should be a decision by a single individual or by a group of individuals all concurring in the decision. A collective decision was sufficient. It was also possible to examine the collective decision- making of a company's board or of its delegate committees over time. This might be of particular significance where those decisions reflected a consistent policy pursued by the company. Provided that the requisite delegation ("of mind and will") was demonstrated, the knowledge of a delegate post-holder or committee was the knowledge of the appellant company; that might be knowledge actually had by such a delegate (either from general sources of knowledge available to a skilled post-holder or skilled committee members or from particular information supplied to him or them) when relevant conduct occurred or, more broadly, knowledge earlier acquired by the board or by a delegate committee or post-holder, even if that was not knowledge actually had by the board or the committee or post-holder whose conduct was said to have caused the deaths; in the latter instance knowledge acquired by the company could be regarded as retained by the company and accordingly available in judging the conduct leading to the deaths. So, although no individual or individuals might have had such actual knowledge as was required in the circumstances for the mens rea of culpable homicide and acted (or failed to act) with that state of mind, the company could be regarded as having acted with the requisite state of mind. This was no more unfair an attribution of knowledge than that recognised and applied in Meridian. Support for the Crown's approach to corporate knowledge was also to be found in El Ajou [1994] 2 All ER 685, especially per Nourse L.J. at pps.695-8, per Rose L.J. at p.699 and per Hoffmann L.J. at pps.705-6. A pragmatic approach had been adopted there; such an approach was equally appropriate in the present context. Reference was also made to Canadian Dredge and Dock Co Ltd. and Another v The Queen (1985) 1 S.C.C.R. 662, especially per Estey J. at pp.691 and 701 (in paragraphed reports at paras.29 and 48). The concept of aggregation which had been rejected in the English authorities was the accumulation of the acts of employees of a company who had not constituted its directing mind and will, not, as here, the accumulation of the acts of those from time to time constituting that directing mind and will. Reference was made to R. v H.M. Coroner for East Kent, ex parte Spooner and to R. v Great Western Trains Co, 30 June 1999, Scott Baker J, unreported, each of which had failed for evidential reasons. It was accepted that in the present case the Crown could only succeed if it was able to demonstrate that the committees (or posts) were acting as the directing mind of the appellant company and if it was legitimate to take into account the totality of the decision-making process of those committees (or posts) over the period libelled. But that, it was submitted, was sufficient to satisfy the identification principle. It was unnecessary that it be demonstrated that there had been blameworthiness on the part of any individual or individuals to the degree requisite for culpable homicide. In so far as a decision in favour of the Crown would amount to a development of the existing law, it was not a development which would infringe Article 7 of the Convention. A development of this kind was reasonably foreseeable. Reference was made R. v H.M. Coroner for East Kent, ex parte Spooner, R. v Seymour (Edward), Lord Advocate's Reference No. 1 of 1994 1995 SLT 248 and R. v Dalby [1982] 1 W.L.R. 621. [62] A company incorporated under the Companies Acts, as the appellant is, is a corporation, distinct in law from its members, its officers, its employees and its agents. As Lord Diplock observed in Tesco Ltd v Nattrass at p.199E-F, such a body owes its corporate personality and its powers to its constitution, namely, the memorandum and articles of association. Although the basic rules of criminal responsibility at common law were formulated with the conduct of human beings in mind, the non-human character of a body corporate does not, at least in the modern law, render it immune from prosecution. But the basis on which a company can be held criminally responsible depends on a due application of the principles which have been evolved by the courts in relation to that matter. These principles recognise and give effect to the special nature of a body corporate. As Lord Diplock observed in Tesco Ltd v Nattrass at p.199, the articles of a company incorporated under the Companies Acts commonly provide that its business shall be managed by its directors. Those directors, acting collectively, may delegate their powers and responsibilities to a greater or lesser degree to one or more of their number or to employees or agents of the company. Such delegation may be to a group of persons, such as a committee of the directors, whose delegated powers are to be exercised on a collective basis. It is clear from the speeches in Tesco Ltd v Nattrass that in relation to the application of the principle of the "controlling mind and will of the company" their Lordships found no difficulty in viewing a collective delegate group as capable of having and of exercising the company's directing mind (see, for example, at p.171F, p.180B-D, p.187F-G and p.199F-H). It would be surprising if they had found such difficulty, given that the directors viewed collectively (commonly referred to as the board), from whom, in general, all delegated powers flow, themselves constitute a collective group. Accordingly, for the application of the identification principle of corporate criminal responsibility, it is unnecessary that some individual, having delegated authority of a kind to render him for the relevant matter the directing mind and will of the company, should have acted (or failed to act) with a requisite state of mind. The principle can equally apply if the delegated authority of the kind mentioned is to a group which then acts (or fails to act) collectively. Interesting questions might no doubt arise if there were a division of opinion amongst those who participated in a critical collective decision or if the knowledge with which the decision was taken was not co-extensive among those participating in it. But in principle a collective decision taken by a delegate group with the requisite knowledge is, in my view, as attributable to the company as a decision by an individual. [63] It is at the next stage that, in my view, the Crown case inevitably breaks down. It is acknowledged that no individual, and no group of individuals acting collectively, at any time acted (or failed to act) with a state of mind which could amount to that degree of culpability which, according to the modern law, is a prerequisite of the crime of culpable homicide. The Crown case can succeed only if it is legitimate to attribute to the appellant company states of knowledge or awareness of individuals or groups which from time to time constituted the controlling mind of the company and to regard such knowledge and awareness as, in effect, "banked" with the company so that, when other individuals or groups subsequently having and exercising the directing mind and will of the company acted (or failed to act), the company is treated as having so acted (or failed to act) with the accumulated states of knowledge and awareness of all those hitherto having and exercising the directing mind and will. In my view, such attribution is not legitimate. It is inconsistent with the identification theory which proceeds on the hypothesis that it is possible to ascribe to the company the state of mind of a natural person (or of a plurality of natural persons acting together). In the field of criminal law it is illegitimate to ascribe to a principal the state of mind of his agent (Tesco Ltd v Nattrass, per Lord Diplock at p.199). It would equally be illegitimate in that field to ascribe to a natural person who at one point of time is the controlling mind and will of a company the state of mind of another person who earlier, perhaps many years earlier, had been the controlling mind and will of that company. But it is only by such illegitimate ascription that the Crown case could succeed, since the company has no mind or memory and accordingly cannot be treated as itself retaining knowledge or awareness. On a true analysis the Crown's case does, despite the advocate depute's valiant and subtle arguments to the contrary, depend on aggregation, and in particular on aggregation of separate states of mind and, as such, is contrary to the basic tenets of Scots criminal law. [64] In terms of authority the only case to which we were referred which might support the Crown's argument on this aspect was El Ajou v Dollar Land Holdings plc. There, in the context of the English civil concept of "knowing receipt", the Court of Appeal held that a company was liable to the plaintiff in constructive trust for assets representing monies fraudulently misapplied by one of its directors, who had been the directing mind and will of the company in relation to the fraudulent misapplication but who had ceased to be a director by the time the assets were actually received by the company. But I do not regard that decision, remote as its context is from the requirements of culpable homicide in Scotland, as of assistance in determination of the issue before us. Meridian was concerned with the construction of a specific statutory provision and, in particular, with what rule of attribution was in the context of that statute to be implied. It likewise is, in my view, of no assistance on the critical issue in this case. [65] In the event no question under Article 7 arises for decision. [66] In the whole circumstances and for the reasons expressed above I am of opinion that the averments in the indictment are irrelevant to instruct a charge of culpable homicide against this corporate appellant. I accordingly concurred and concur in the allowing of this appeal and in the disposal indicated by your Lordship in the chair.