In 2004 a fire rippe dthrough a nursing home in Uddingston killing 14 elderly residents. A fresh attempt to prosecute the owners of the home collapsed.
The company that ran the home dissolved in February 2005 and it was for this reason that the judges sitting the Appela Court rejected the argumenst put forward by the Crown. Solicitor-general, Frank Mulholland QC said:
The decision has brought an end to the current indictment against Rosepark Care Home specifying that the firm was now dissolved.
The prosecution of a dissolved partnership was previously unknown in Scots law.
Today’s decision of the Appeal Court has clarified the law in relation to the liability of a dissolved partnership for alleged crimes that occurred prior to it being dissolved.
The Appeal Court has held that criminal liability does not rest with the former firm in its firm name
In their opinion the appeal court judges said:
We conclude that the dissolved partnership does not have any continuing legal personality following dissolution and accordingly we consider that the indictment to which the petitions are directed is incompetent.
An indictment of this nature was previously unknown to Scotland and the Court has ruled that it is incompetent for an indictment to be brought against a disolved partnership. This does make sense when one considers the law in Scotloand relating to partnerships. A partnership has legal personality only at its formation and prevsious case and statutory law would suggest thatthis legal personality ends upon the dissolusion of the partnership. If no legal personality exists then that leagl personality cannot be indicted. You could say it would be like trying to prosecute a dead person.
Their lordships opinions can be read here