''Transco plc v Her Majesty's Advocate'

is a Scots

criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

case that involved the first Scottish

prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

of a

public limited company A public limited company (legally abbreviated to PLC or plc) is a type of public company under United Kingdom company law, some Commonwealth of Nations, Commonwealth jurisdictions, and Republic of Ireland, Ireland. It is a limited liability co ...

for

culpable homicide Culpable homicide is a categorisation of certain offences in various jurisdictions within the Commonwealth of Nations which involves the homicide (illegal killing of a person) either with or without an intention to kill depending upon how a pa ...

.Chalmers, J. (2004) ‘Corporate Culpable Homicide: Transco plc v H M Advocate’, The Edinburgh law review, 8(2) The decision is considered significant in Scots law on corporate criminal liability.

Background

Transco was a public gas utility company, part of the

National Grid plc National Grid plc is a British multinational electricity and gas utility company headquartered in London, England. Its principal activities are in the United Kingdom, where it owns and operates electricity and natural gas transmission networks ...

. 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. Transco was responsible for providing a gas connection to the Findlay house.

Police officers A police officer (also called policeman or policewoman, cop, officer or constable) is a warranted law employee of a police force. In most countries, ''police officer'' is a generic term not specifying a particular rank. In some, the use of ...

in the area had noticed a strong smell of gas, and informed Transco of a possible

gas leak A gas leak refers to a leak of natural gas or another gaseous product from a pipeline or other containment into any area where the gas should not be present. Gas leaks can be hazardous to health as well as the environment. Even a small leak into ...

. By the time the area was sealed off, an

explosion An explosion is a rapid expansion in volume of a given amount of matter associated with an extreme outward release of energy, usually with the generation of high temperatures and release of high-pressure gases. Explosions may also be generated ...

occurred, damaging five houses in the area, including the Findlay

bungalow A bungalow is a small house or cottage that is typically single or one and a half storey, if a smaller upper storey exists it is frequently set in the roof and Roof window, windows that come out from the roof, and may be surrounded by wide ve ...

. The

Health and Safety Executive The Health and Safety Executive (HSE) is a British public body responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare. It has additionally adopted a research role into occupational risks in Great B ...

investigated the explosion, and subsequently fined Transco £15 million. Transco was also investigated by the

Procurator Fiscal A procurator fiscal (pl. ''procurators fiscal''), sometimes called PF or fiscal (), is a public prosecutor in Scotland, who has the power to impose fiscal fines. They investigate all sudden and suspicious deaths in Scotland (similar to a corone ...

Hamilton Hamilton may refer to: * Alexander Hamilton (1755/1757–1804), first U.S. Secretary of the Treasury and one of the Founding Fathers of the United States * ''Hamilton'' (musical), a 2015 Broadway musical by Lin-Manuel Miranda ** ''Hamilton'' (al ...

for a possible

charge in relation to the Findlay deaths.

Court proceedings

In 2003, the

Lord Advocate His Majesty's Advocate, known as the Lord Advocate (), is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolution, devolved powers of the Scottish P ...

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 Broad concept article: *Competence (polyseme), capacity or ability to perform effectively Competence or competency may also refer to: *Competence (human resources), ability of a person to do a job properly **Competence-based management, performa ...

and

relevance Relevance is the connection between topics that makes one useful for dealing with the other. Relevance is studied in many different fields, including cognitive science, logic, and library and information science. Epistemology studies it in gener ...

. A single judge refused the challenge and Transco appealed the decision before the

High Court of Justiciary The High Court of Justiciary () is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff C ...

, Appeal Court. Transco maintained that the charge was incompetent and irrelevant: "incompetent" because, under

Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...

, a

legal person In law, a legal person is any person or legal entity that can do the things a human person is usually able to do in law – such as enter into contracts, lawsuit, sue and be sued, ownership, own property, and so on. The reason for the term "''le ...

could not be convicted of

homicide Homicide is an act in which a person causes the death of another person. A homicide requires only a Volition (psychology), volitional act, or an omission, that causes the death of another, and thus a homicide may result from Accident, accidenta ...

, and "irrelevant" because, even if the charge was competent and the

prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

proved their allegations, it would not amount to

by Transco. 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 In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...

'' on the part of Transco was incorrect and that had made the charge irrelevant. Lord Hamilton and Lord Osborne gave concurring decisions. Lord MacLean did not deliver a decision, but concurred with Lord Hamilton's decision. The Court ruled that a company could be prosecuted under Scots criminal law. Both Lord Hamilton and Lord Osborne discussed English

as it stood at the time, especially, the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

decision in '' Tesco Supermarkets Ltd. v Nattrass''. In ''Nattrass'', Lord Reid had adopted the "directing mind" theory of corporate liability. Lord Reid had famously noted: 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.

Other proceedings

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. 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.

Subsequent developments

In 2007, the

UK Parliament The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace of ...

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 England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...

(where the offence is called " corporate manslaughter"). As of November 2023, there has not yet been any prosecution for "corporate homicide" in Scotland. However, there have been calls to prosecute

NHS Greater Glasgow and Clyde The National Health Service (NHS) is the term for the publicly funded healthcare systems of the United Kingdom: the National Health Service (England), NHS Scotland, NHS Wales, and Health and Social Care (Northern Ireland) which was create ...

and Scottish Prison Service under the Act.

Background

Court proceedings

Other proceedings

Subsequent developments

References

Further reading