Transco plc v HM Advocate

Transco was a public gas utility company, part of the National Grid plc. On 22 December 1999, a gas explosion at a family home in Larkhall resulted in deaths of four people, Andrew and Janette Findlay, and their children Stacey and Daryl.{{Cite news |title=Transco charged over gas blast deaths |work=BBC News Scotland |date=5 February 2003 |url=http://news.bbc.co.uk/1/hi/scotland/2728863.stm |archive-url=https://web.archive.org/web/20040225222217/http://news.bbc.co.uk/1/hi/scotland/2728863.stm |archive-date=25 February 2004 |access-date=1 August 2024}}Shiels, R. (2004) ‘Common Law Crime: Liability of Non-Natural Person’, Journal of criminal law (Hertford), 68(2), pp. 118–121. Transco was responsible for providing a gas connection to the Findlay house.{{Cite news |author=Owen Bowcott |title=Transco fined £15m for gas pipe error that killed family |work=The Guardian |date=25 August 2005 |url=https://www.theguardian.com/uk/2005/aug/26/owenbowcott |archive-url=https://web.archive.org/web/20220116232452/https://www.theguardian.com/uk/2005/aug/26/owenbowcott |archive-date=16 January 2022 |access-date=1 August 2024}} Police officers in the area had noticed a strong smell of gas, and informed Transco of a possible gas leak. By the time the area was sealed off, an explosion occurred, damaging five houses in the area, including the Findlay bungalow.

The Health and Safety Executive investigated the explosion,{{Cite news |author=Felicity Lawrence |title=Police investigate Transco records as part of fatal gas blast inquiry |work=The Guardian |date=18 June 2001 |url=https://www.theguardian.com/uk/2001/jun/18/felicitylawrence |archive-url=https://web.archive.org/web/20140510134826/https://www.theguardian.com/uk/2001/jun/18/felicitylawrence |archive-date=10 May 2014 |access-date=1 August 2024}} and subsequently fined Transco £15 million.{{cite web|url=https://www.scotsman.com/news/transco-fined-ps15m-killer-gas-blast-2479890| title=Transco fined £15m for killer gas blast |publisher=The Scotsman |access-date=16 January 2022}} Transco was also investigated by the Procurator Fiscal, Hamilton for a possible culpable homicide charge in relation to the Findlay deaths.

In 2003, the Lord Advocate Colin Boyd charged Transco with culpable homicide and in the alternate, contravening sections 3 and 33(1) of the Health and Safety at Work etc. Act 1974. Transco challenged the culpable homicide charge on the grounds of competence and relevance. A single judge refused the challenge and Transco appealed the decision before the High Court of Justiciary, Appeal Court.{{cite court |litigants=Transco plc v HM Advocate |vol=2003 |reporter=HCJAC |opinion=67 |pinpoint=para 29 |court=High Court of Justiciary |date=3 June 2003 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2003/67.html}} Transco maintained that the charge was incompetent and irrelevant: "incompetent" because, under Scots law, a legal person could not be convicted of homicide, and "irrelevant" because, even if the charge was competent and the prosecutor proved their allegations, it would not amount to culpable homicide by Transco.{{cite court |litigants=Transco plc v HM Advocate |vol=2003 |reporter=HCJAC |opinion=67 |pinpoint=para 31 |court=High Court of Justiciary |date=3 June 2003 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2003/67.html}}

A three-judge bench of the Appeal Court was unanimous in their decisions. They held that it was competent for the prosecutor to charge a company with culpable homicide. However, the Court held that the way by which the prosecutor had tried to establish mens rea on the part of Transco was incorrect and that had made the charge irrelevant.{{cite court |litigants=Transco plc v HM Advocate |vol=2003 |reporter=HCJAC |opinion=67 |pinpoint=paras 21 and 26 |court=High Court of Justiciary |date=3 June 2003 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2003/67.html}} Lord Hamilton and Lord Osborne gave concurring decisions. Lord MacLean did not deliver a decision, but concurred with Lord Hamilton's decision.{{cite court |litigants=Transco plc v HM Advocate |vol=2003 |reporter=HCJAC |opinion=67 |pinpoint=para 1 |court=High Court of Justiciary |date=3 June 2003 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2003/67.html}}

The Court ruled that a company could be prosecuted under Scots criminal law. Both Lord Hamilton and Lord Osborne discussed English criminal law as it stood at the time, especially, the House of Lords decision in Tesco Supermarkets Ltd. v Nattrass.{{cite court |litigants=Transco plc v HM Advocate |vol=2003 |reporter=HCJAC |opinion=67 |pinpoint=paras 19-23 and 47-48 |court=High Court of Justiciary |date=3 June 2003 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2003/67.html}} In Nattrass, Lord Reid had adopted the "directing mind" theory of corporate liability. Lord Reid had famously noted:

{{quote|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.{{cite court |litigants=Tesco Supermarkets Ltd v Nattrass |vol=1971 |reporter=UKHL |opinion=1 |pinpoint=page 4 |court=House of Lords |date=31 March 1971 |url=https://www.bailii.org/uk/cases/UKHL/1971/1.html}}}}

Both opinions in Transco concluded that the developments in English law had been incorporated into Scots law. A company could be held guilty, if its "directing mind" was guilty. Transco had argued that the charge was irrelevant, because the prosecution had failed to identify any such "directing mind". The opinions agreed with Transco's relevancy argument.{{Cite journal |author=David Leckie and Aisha Anwar |title=Bad company |journal=The Journal |publisher=Law Society of Scotland |date=16 May 2005 |volume=50 |issue=5 |url=https://www.lawscot.org.uk/members/journal/issues/vol-50-issue-05/bad-company/ |archive-url=https://web.archive.org/web/20240804140309/https://www.lawscot.org.uk/members/journal/issues/vol-50-issue-05/bad-company/ |archive-date=4 August 2024 |access-date=4 August 2024}}

Transco separately appealed the decision to allow the Health and Safety at Work etc. Act 1974 charge. That appeal was refused by the Appeal Court.{{cite court |litigants=Transco plc v HM Advocate |vol=2004 |reporter=ScotHC |opinion=68 |pinpoint= |court=High Court of Justiciary |date=16 September 2004 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2004/68.html}} Transco subsequently made a third appeal, challenging other preliminary decisions made by Lord Carloway as the trial judge. It also challenged Lord Carloway's fitness to preside over the trial on the grounds of apparent bias. The Appeal Court rejected the third appeal as well.{{cite court |litigants=Transco plc v HM Advocate |vol=2005 |reporter=HCJAC |opinion=1 |pinpoint= |court=High Court of Justiciary |date=14 January 2005 |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotHC/2005/HCJAC_1.html}}

In 2007, the UK Parliament passed the Corporate Manslaughter and Corporate Homicide Act 2007, which created the offence of "corporate homicide" in Scotland. Several companies have been prosecuted and convicted under the new law in England (where the offence is called "corporate manslaughter"). As of November 2023, there has not yet been any prosecution for "corporate homicide" in Scotland.{{Cite web |author=Bruce Craig and Fiona Cameron |title=Scottish NHS board named in rare hospital corporate manslaughter probe |date=17 November 2023 |website=Pinsent Masons |url=https://www.pinsentmasons.com/out-law/news/scottish-nhs-rare-hospital-corporate-manslaughter-probe |archive-url=https://web.archive.org/web/20240804142437/https://www.pinsentmasons.com/out-law/news/scottish-nhs-rare-hospital-corporate-manslaughter-probe |archive-date=4 August 2024 |access-date=4 August 2024}} However, there have been calls to prosecute NHS Greater Glasgow and Clyde{{Cite news |title=NHS board named in Glasgow hospital corporate homicide probe |date=12 November 2023 |work=BBC News |url=https://www.bbc.co.uk/news/uk-scotland-glasgow-west-67396347 |archive-url=https://web.archive.org/web/20231112181210/https://www.bbc.co.uk/news/uk-scotland-glasgow-west-67396347 |archive-date=12 November 2023 |access-date=4 August 2024}} and Scottish Prison Service{{Cite news |author=Lucy Adams |title=Scottish Prison Service faces prosecution for corporate homicide |date=7 March 2023 |work=BBC News |url=https://www.bbc.co.uk/news/uk-scotland-64841142 |archive-url=https://web.archive.org/web/20230713003901/https://www.bbc.co.uk/news/uk-scotland-64841142 |archive-date=13 July 2023 |access-date=4 August 2024}} under the Act.

{{Reflist}}

• {{cite journal | author=James Chalmers| title=Corporate Culpable Homicide: Transco plc v H M Advocate| journal=Edinburgh Law Review| year=2004| volume= 8| issue=Sep 2008| page=262–266| url=https://eprints.gla.ac.uk/70302/1/70302.pdf | doi=10.3366/elr.2004.8.2.262}}

Category:2003 in Scotland

Category:High Court of Justiciary cases

Category:2003 in United Kingdom case law