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The Scottish Executive has just announced a consultation exercise on a new corporate homicide law. Canada's law, which includes jail for directors and probation for companies, would be a more adventurous and progressive route for the Executive to follow than the Westminster proposals.

Dr David Whyte is a lecturer in the Department of Applied Social Science, University of Stirling. He is a specialist in the domestic and international regulation of corporate crime.

After months and months of stupefying debates about ‘neds’ in the Scottish Parliament, it seems that attention might be shifting onto another public enemy. The gangs of ‘criminals’ that are to be the subject of a public consultation by Scottish Justice Minister Cathy Jamieson are better described as ‘ heds’: Homicidal Executives and Directors, that is. The reform that the Scottish Executive is to consult on is a new law on corporate homicide.

Corporate crime is one of few topics on which you can find a consensus amongst criminologists. Hidden amongst the debates about whether CCTV or extra police on the beat is likely to increase or decrease crime, the pervasiveness of corporate crime is something that nobody bothers arguing about. Fill a room full of criminologists and nearly all will agree that corporate and white collar crime causes more death, injury, misery, financial loss and hardship than all other types of crime put together. Estimates have put the total of recorded and unrecorded UK deaths resulting from injury and occupational ill-health and disease at around 20,000 per year. Since in most recorded categories, Scottish fatalities tend to be higher on average, there is reason to believe that the equivalent total for Scotland is around 2,000. It is an admittedly crude comparator, but young people under the age of 18 last year were responsible for 3 homicides in Scotland. It is 3 too many of course, but it is worth noting - especially in the context of all of the media bile directed at young people that government ministers have actively encouraged - that there has not been lower figure since 1993.

A second thing most criminologists will agree upon is that corporate crime is the easiest type of crime to get away with. This is so partly because of the legal protections granted to companies, and – to put it simply - because the criminal justice system generally avoids dealing with corporate and white collar criminals. Whilst we are constantly told of the difficulties of investigating and gathering evidence in such cases, in fact the main problem is that the criminal justice system rarely bothers.

Research by two colleagues of mine indicate what might happen if there was a change in direction. Sociology Professor Steve Tombs has documented how at least two thirds of deaths at work are the result of criminal breaches of health and safety law. Yet only a tiny minority prosecuted and even those that are prosecuted, are done so under health and safety law. Analysis by criminal lawyer Professor Gary Slapper has concluded that in England, 20% of deaths from injuries sustained at work at the investigation stage presented a prima facie case of corporate manslaughter. Only a few are ever investigated as such. No company director in Scotland has ever been prosecuted – never mind convicted – for the culpable homicide of a worker. Perpetrators, even if they are prosecuted under health and safety law, tend to escape with a derisory fine. The average penalty following a conviction under health and safety law for killing someone is typically £20-£30,000. For the minority of companies that are convicted, the price of life in the law courts is roughly the cost of a director’s company car.

If the impending consultation signals that something is going to be done about this huge dark figure of crime, the Justice Minister’s statements have been noticeably tentative to date. Although they signal a commitment to corporate homicide reform, they have failed to actually mention whether the accountability of individual directors is to be included in the plan. Holding those who make the key decisions in corporations accountable when a serious crime has been committed – or more often, when minimum workforce protection measures have been recklessly omitted - is important because the corporate shell allows directors and senior management to act with impunity. When a death at work is prosecuted, it is normally the company that is fined. And often the costs of those fines are passed on to workers, customers or the general public in any case. In other words, a death might have the same price tag as the director’s car, but the director will probably keep his liberty and his company car, even when he or she made the decision that caused the death. The legal institution of the ‘corporate veil’ also means that only in very exceptional circumstances are owners and shareholders penalised. Under those conditions, the corporation and its senior officers have little motivation to ensure that it avoids ending up in the courts.

The Scottish Executive proposals came on the same day as the announcement in the Queens speech that there would be a draft Corporate Manslaughter Bill published in England and Wales. This was no co-incidence, since the Scottish Executive had made it clear they would wait for Westminster to jump before making any decision. Of course, the origins of the Scottish proposals, coming as they do the year following the Transco verdict and in the same year as the questions raised following the Maryhill disaster are also a response to a growing public anger and popular movement for corporate accountability.

The legal position is that the English proposals cannot simply be translated into a Scottish bill. A new law will have to be drafted. But if the drafting follows the spirit of the Westminster proposals, we are likely to end up with a set of rather feeble and ineffective reforms. Judging by statements from Whitehall, the draft bill due to be published by the Westminster government will not include any measures to hold directors accountable. Neither will it include criminal penalties for employers that injure their employees. Those are remarkable omissions. It is inconceivable that any government could introduce any other criminal law that made killing a crime and allowed people to maim and injure each other at will.

So what is the problem with including those types of corporate homicide in a reform of the law? Well, in the case of injuries, it is purely historical. The proposals in England and Wales emerged directly from a Law Commission inquiry into the English law of involuntary manslaughter. This allowed the government to limit the proposals to corporate killing. But this historical reason does not exist in Scotland, and there is therefore no logical reason to exclude injuries from any subsequent Scottish legislation. The ommission of directors’ accountability in the English proposals has been wholly due to the government’s fear of the business lobby. Now there is every reason to expect the business lobby will oppose a new law on corporate homicide. It would be a huge surprise if the organisations representing business interests did not use all of their collective strength to oppose measures designed to keep their members in line. This is where the Scottish Executive will need to show its mettle and act in accordance with the public good rather than any vested commercial interests.

The Executive will also need act quickly and put in place measures that deal with the huge dark figure of occupational illnesses and disease. Those workplace homicides tend to be more difficult to establish because of problems with time lapse between exposure and detection of the disease, and because of the problem of multiple exposure in different locations. The main problem is not a legal one, but that they are not generally investigated. It is a truly baffling state of affairs. If an individual poisoner deliberately kills someone over a period of time, it might cause probelms for the gathering of evidence, but the police would be obliged to investigate to the best of their abilities. In the case of occupational killings that take place over a period of time, only 1% of cases are ever investigated.

Contrast this with the way that young people’s criminal activity is monitored and recorded much more intensely than ever before. We have statistics for persistent youth offending broken down to the minutest detail in many local authority areas in Scotland. We have records of how many offenders committed more than 20, less than 20 but more that 10, less than 10 but more than 5 and so on in every local authority. For an increasing number of young people this system of intense surveillance is bringing the disciplinary apparatuses of the prison onto the streets. As the English experience of using ASBOs against young people shows us, the theory that street controls can divert children from incarceration is flawed. In England and Wales, the net-widening effect of ASBOs has resulted in a sharp rise in the number of young people being jailed. Yet still we have no means of adequately punishing the most deadly and harmful of all offenders when they commit serious crimes. If local and national government spent a fraction of the energy understanding the risks of exposure to hazardous substances that they spend on monitoring young people, then perhaps there would be a little more public outcry and media venom directed against ‘heds'.

Already, critics of the Scottish Executive have begun to talk about the ‘anglification’ of criminal justice for following sheep-like the punitive rhetoric on youth annoyance. There is a real danger that the Scottish Executive will simply mimic the Westminster government’s faint-hearted corporate killing proposals. The Scottish Executive now has an opportunity to answer those critics by living up to its broad aim of improving social justice. England is by no means the only reference point for the forthcoming consultation. In Canada a new law was passed in November 2003 that is much more comprehensive than the reforms proposed in England and Wales. Under this law prosecutions can be laid not only when serious negligence has resulted in death but also when it has resulted in serious injuries. The law also imposes a legal duty upon directors and others with supervisory responsibilities “to take reasonable steps to prevent bodily harm.” And it allows the courts to sentence companies to probation orders which require them to make fundamental changes to policies and working routines and then report back to the court . Given the similarity in legal tradition, there is no reason why a Canadian-style law cannot be introduced in Scotland

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