Transco plc v HM Advocate
Transco plc v Her Majesty's Advocate is a Scots criminal law case that involved the first Scottish prosecution of a public limited company for culpable homicide. 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. 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 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, and subsequently fined Transco £15 million. Transco was also investigated by the Procurator Fiscal, Hamilton for a possible culpable homicide charge in relation to the Findlay deaths.
Court proceedings
In 2003, the Lord Advocate Colin Boyd charged Transco with culpable homicide and in the alternate, contravening sections 3 and 33 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. 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.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. [Arthur Hamilton, South Lanarkshire|Hamilton, Lord Hamilton|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 criminal law as it stood at the time, especially, the House of Lords 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.