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Parliamentary Debates and Questions

S5W-22581: Finlay Carson (Galloway and West Dumfries)

Scottish Conservative and Unionist Party

Date lodged: 8 April 2019

To ask the Scottish Government which organisation or public body has ultimate responsibility if a fatality on a trunk road was found to be as a result of the road being poorly maintained, and under what circumstances would the Crown Office and Procurator Fiscal Service subsequently consider whether to press charges under (a) the Corporate Manslaughter and Corporate Homicide Act 2007 and (b) other legislation.

Answered by: James Wolffe QC 1 May 2019

The management and maintenance of the Scottish trunk road network
is ultimately the responsibility of Scottish Ministers by the virtue of the
powers and duties conferred by the Roads (Scotland) Act 1984.

The Crown Office and Procurator Fiscal Service (COPFS) undertakes
the investigation of deaths and the prosecution of crime in Scotland. All
road traffic fatalities are reported to COPFS and will either result in a
criminal investigation by the Road Traffic Fatalities Investigation Unit or
a death investigation by the Scottish Fatalities Investigation Unit
depending on the circumstances. Where a fatality on a trunk road is
potentially the result of the road being poorly maintained and a case is
reported to COPFS, prosecutors will consider all the facts and
circumstances prior to making any decision as to whether or not to
prosecute for a criminal offence.

In making that decision the prosecutor will assess whether the circumstances
constitute a crime known to the law of Scotland, whether there is a sufficiency
of evidence in relation to the crime and whether proceedings are in the public
interest. The approach which prosecutors are required to take is set out in the
Scottish Prosecution Code which can be found at http://www.copfs.gov.uk
/images/Documents/Prosecution_Policy_Guidance
/Prosecution20Code20_Final20180412__1.pdf .

An offence under Section 1 of the Corporate Manslaughter and Corporate
Homicide Act 2007 is committed where an organisation, as defined by that
Act, caused a person’s death because its activities were managed or organised
in a way that amounted to a gross breach of a relevant duty of care owed to that
person.