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UK Government moves to close legal loophole on prosecution of partnerships in Scotland

Tightening the law on the criminal liability of partnerships and reforming the law on unincorporated associations will be the dual focus of a UK Government consultation launched today

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Tightening the law on the criminal liability of partnerships and reforming the law on unincorporated associations will be the dual focus of a UK Government consultation launched today (Tuesday 17 April).

The Government is seeking views on proposals put forward by the Scottish Law Commission.

Reforming the criminal liability of partnerships in Scots law was suggested after the tragedy of the Rosepark nursing home fire in Lanarkshire in 2004 in which 14 residents lost their lives.

The case against the care home operators failed in the courts because of a loophole which prevented the prosecution of a partnership once it had been dissolved.

The proposed change  would ensure all Scottish partnerships could be held to account if they commit crimes and prevent them escaping prosecution for potentially serious offences by dissolving.

The consultation will also look at a separate issue of attributing legal personality to non-profit making unincorporated associations where they meet certain statutory criteria.

Without this reform, a member of a charity, club or other unincorporated association could find themselves held personally liable for someone injured at an event it has organised, for an act for which they are not personally culpable, exposing them to personal financial risk.

The Commission’s proposals would provide organisations with limited liability to ensure individual members or office-bearers could not be held personally liable for any damage or offence caused by the organisation as a whole.

The Secretary of State for Scotland Michael Moore said:

“There is an urgent need to ensure that we end the loophole that led to the failure of prosecutions following the Rosepark tragedy. This must not be allowed to happen again. It is not right that partnerships are able to avoid criminal proceedings  by dissolving.

“The second measure would restrict the liability of individuals in unincorporated associations. It is not fair that someone who gives their time to the management of a club or association should be held personally - and financially - responsible for an accident or injury which happens at one of its events. We believe that should be the responsibility of the organisation as a whole and are consulting on the best way to remove this risk and ensure individuals who help manage clubs or voluntary associations are protected.

“We believe these two proposals are sensible and sound steps forward for Scots law.”

The consultation was announced by the Secretary of State in a written ministerial statement to Parliament this morning.

The government is now considering whether to implement the proposals based on the Scottish Law Commission¿s work, which led to a report and draft Bill in 2009 on unincorporated associations and a report and draft Bill in 2011 in the law on criminal liability of dissolved Scottish partnerships.

It is seeking views on the issues.  The Scottish Law Commission has indicated it supports the process and will continue to work with the UK Government to finalise a Bill.

The Consultation closes on 2 July 2012.

Responses to:
Law Reform Consultation
Room 8/2
Scotland Office
Dover House
London SW1A 2AU

Tel: 020 7 270 6738
Fax: 020 7 270 6812

Published 17 April 2012