The Partnerships (Prosecution) (Scotland) Bill has been introduced at Westminster by the Advocate General for Scotland. The proposed change in the law aims to reform partnership law to allow prosecution of dissolved partnerships in respect of offences committed before the date of dissolution.
At present the law governing partnerships in Scotland allows a partnership to escape prosecution if it dissolves before criminal proceedings are served. This happened most publically in the wake of the Rosepark Care Home fire in 2004 in which 14 residents died.
Following the fire an attempt was made to prosecute the three former partners of the firm that owned and operated the care home. The proceedings were based upon health and safety legislation where offences are committed by the relevant employer. The court ruled in that case that the individual partners were not the employer but rather the employer was the partnership which is a separate legal person.
A second attempt to prosecute was undertaken with the indictment served on the dissolved partnership. This case also failed as the partnership had ceased to exist at the date of dissolution so there was no legal person to prosecute.
The Bill as submitted allows for prosecution of a dissolved partnership as if it had not been dissolved so long as the criminal proceedings are commenced within 5 years.
It is also worth noting that as presented the bill does not restrict payment of the fine to the assets of the dissolved partnership which could have serious implications for the former partners.
The Bill is at an early stage and we will continue to report on its progress.