Does anyone have any details of the original charges made against the operators of Rosepark?
Hi Nearlythere
hope this is useful, sorry no link just all this text,
SUMMARY OF DECISION
Her Majesty’s Advocate
V
THOMAS WILLIAM BALMER, ANNE BALMER,
ALAN THOMAS BALMER and BALMER CARE HOMES LTD.
21st February 2007
Today at Glasgow High Court Lord Hardie dismissed the charges against Thomas William Balmer, Anne Balmer and Alan Thomas Balmer due to the way in which the charges on the indictment had been framed by the Crown Office. The Crown accepted that these individuals were not employers and that the charges specified could only have been committed by employers. However, Lord Hardie emphasized that it was still open to the Lord Advocate to prosecute these individuals on appropriate charges.
Lord Hardie made the following statement explaining the decision.
“During the course of the past two days I have heard detailed submissions and the citation of authority. In the available time I have been unable to prepare a full opinion giving detailed reasons for my conclusion but I shall issue such an opinion in due course. In the interests of all parties, however, I have decided that it would be appropriate to indicate my views.
On 19 February 2007 the accused appeared at a preliminary hearing at Glasgow High Court in respect of an indictment containing various charges alleging breaches by the first three accused of the Health and Safety at Work Act 1974 and Regulations, including the Management of Safety at Work Regulations 1999, the Fire Precautions (Workplace) Regulations 1997 as amended, the Health and Safety at Work Regulations 1999 and the Electricity at Work Regulations 1989. The first three accused are charged with 12 charges as individuals in their capacity as partners of the firm of Rosepark Nursing Home, also known as Rosepark Care Home 261 New Edinburgh Road, Viewpark, Uddingston (“Rosepark”) and as employers. At the residential care and nursing home operated by Balmer Care Homes Limited at Croftbank House, Old Mill Road, Uddingston Balmer Care Homes Limited is alleged to have breached the Health and Safety at Work Act 1974 (“HSWA”), the Management of Health and Safety at Work Regulations 1999 and the Fire Precautions (Workplace) Regulations 1997 as amended. In some instances it is alleged that there were several breaches of certain Regulations and statutory provisions.
Challenge to the relevance of the indictment
Charges 13 and 14 are directed against Balmer Care Homes Limited in respect of its business at Croftbank House in its capacity as an employer and counsel for that company did not challenge the relevance of these charges.
Each of the first three accused challenged the relevance of the 12 charges libelled against that accused. The basis of the challenge is that each charge is prefaced by the accused “being partners in the firm of Rosepark Nursing Home, also known as Rosepark Care Home, and carrying on the business or undertaking of a residential care and nursing home registered to provide care and nursing for up to 43 residents in the categories of frail elderly, elderly with mild mental illness, terminally ill and young physically disabled at Rosepark and being employers in terms of the Health and Safety at Work Act 1974.”
Although the submissions on behalf of the accused and the Crown covered a range of authorities, there was a substantial measure of agreement. In particular, the following facts were agreed:
1. At the date of the alleged offences the first three accused were the only partners of Rosepark carrying on the business specified in charges 1 to 12 inclusive.
2. The statutory provisions in HSWA and the various Regulations specified in the charges impose duties on employers.
3. The partnership was the employer in terms of HSWA.
4. Following the fire at Rosepark on 31 January 2004 in which 14 residents died and 4 residents were injured there was a police investigation.
5. On 28 February 2005 the partnership was dissolved.
6. On 1 March 2005 the partners transferred the business to Rosepark Care Home Limited, a company of which the first three accused were the directors.
7. The Petition initiating the criminal proceedings was raised by the Crown in November 2005.
8. The Crown could have indicted the partnership if it had still been in existence.
9. It was not competent to indict the now dissolved partnership.
In these circumstances it was submitted that as the partnership was the employer, no criminal liability attached to anyone because the partnership has been dissolved (R v
Wakefield [2004] EWCA Crim 2278), the partners are not vicariously liable for the criminal acts of the firm and criminal liability cannot be transferred from the partnership to them (British Airways Board v Taylor [1976] 1 WLR 13).
In response the advocate depute disavowed any attempt by the Crown to impose vicarious liability on the partners but maintained that the Crown relied upon its power to indict an existing partnership. In such an event there was nothing to prevent the Crown from including the individual partners in the indictment in their capacity as partners of the firm.
Superficially the charges are relevant because they allege that each of the first three accused were employers in terms of the HSWA. It was a matter of agreement that the status of an employer was necessary for the commission of the particular offences specified in the indictment, although if the Crown considered that the commission of an offence by an employer was “due to the act or default of some other person” that person may be charged and convicted of the offence (section 36 HSWA). The Crown does not rely upon this section and is unable to do so as long as the Crown maintains that the accused had the special capacity of employers. If that special capacity did not exist the Crown could consider whether any or all of the individual accused ought to be
charged by virtue of section 36 with charges identical to some of those libelled in this indictment.
However in view of the admission on behalf of the Crown that the partnership was the employer of the employees at Rosepark, it cannot be maintained that any of the individuals comprising the first 3 accused were employers. The contract of employment was with the firm. The basis for the Crown asserting that the individuals were employers was founded in the law of partnership. Although employees could have had recourse to the assets of the individual partners if the firm had failed to pay debts due to them, it is quite a different matter to attribute personal criminal responsibility to partners for the criminal acts of the firm. One consequence of such a course of action might be to expose individuals to periods of imprisonment whereas the limit of their liability for offences committed by the firm would be a financial penalty. Moreover the advocate depute stated in terms that the Crown was not seeking to impose vicarious responsibility upon the partners for the alleged criminal acts of the firm.
The dissolution of the firm is fatal to any charge against it but it does not necessarily end the prospect of proceedings against individual partners. I have already referred to section 36 of HSWA. If, as was suggested in submissions, the Crown is seeking to attach criminal responsibility to the accused as partners of the now dissolved firm, any future indictment should make that clear. While it may seem inappropriate to permit people to escape criminal liability and at least the prospect of substantial financial penalties by taking steps to dissolve the firm after a criminal investigation is underway, it is essential that any allegation of criminal liability against partners of a dissolved firm is well founded. Moreover, if prosecution has been rendered impossible by the actions of others in the course of a criminal investigation, such actions may give rise to a charge of perverting or attempting to pervert the course of justice, assuming the essential ingredients of that charge exist.
In relation to the allegations that the first three accused gave false information to the Scottish Commission for the Regulation of Care (charges 1 and 2) and that the third accused gave false information to James Reid, who was preparing a risk assessment for Rosepark (charges 8 and 9), it appears from the submissions of the advocate depute that some of these may form the basis of a charge at common law of fraud or attempted fraud or a statutory offence of a contravention of section 33 (1)(k) HSWA. If that is so, such charges should be libelled if it is intended to lead evidence about these matters in order to give the accused fair notice.
In all the circumstances I have reached the conclusion that the indictment as framed against the first 3 accused is irrelevant because the Crown acknowledges that the individuals were not party to the contracts of employment of the employees at Rosebank and were therefore not employers. Accordingly I shall dismiss the charges against each of the first 3 accused as irrelevant.
I wish to emphasise for the benefit of the relatives of those residents who perished in the fire and the injured residents and their relatives that this decision does not signal an end of proceedings against the accused. It is a matter for the Lord Advocate, acting in the public interest, to determine whether further action should be taken against any or all of the first 3 accused and, if so, on what charges”.
