Rose Park Care Home Fire tests Scots Law

The Crown Office has announced that it is to launch a third attempt at a prosecution of the owners of Rosepark Nursing Home (Care Home) were 14 residents died in a fire in 2004.

Two previous attempts at a prosecution have floundered because of technicalities with Scots law which have so far resulted in the failure to hold anyone properly to account for the Rosepark care Home fire tragedy.

A first attempt at a prosecution foundered when the trial judge Lord Hardie ruled that it was only possible for the alleged offences to be carried out by employers, and he ruled that the three owners of the home who had been named in the indictment were not in fact employers in law.

Later in July 2008 a second attempted prosecution failed, this time because the indictment named the partnership as the legal entity in the indictment. The partnership had however at that time been dissolved and the prosecution could not proceed because having been dissolved the partnership no longer had any legal identity.

A third prosecution is now being attempted against Thomas Balmer, Anne Balmer and Alan Balmer in their capacity as the surviving partners of the dissolved firm of Rosepark Care Home.

The Crown Office said that "The whole surviving partners are indicted in their representative capacity only and not as individuals."

Also named on the indictment are Croftbank House Limited, formerly Balmer Care Homes Limited.

The Crown Office stated that "In Scots Law, a firm is a separate legal person distinct from the partners of whom it is composed. The Appeal Court held that on dissolution of the firm there was a complete cessation of the persona of the partnership (that is the separate legal person) and that a dissolved firm did not retain a limited persona for the purposes of criminal prosecution which could be prosecuted in its own name."

A Preliminary Hearing on the new indictment is to be held at the High Court of Justiciary in Glasgow on the 30th October 2008.

The relatives of those who died will be impatient to see a proper court examination of the occurrences around this fire. It is vital that the court proceeds with examining whether those charged with the duty of looking after their relatives safely fulfilled their responsibilities. It would be a sad day for justice in Scotland if this third prosecution also fell on a technicality and prevented the bereaved seeing those involved in the ownership and provision of this care home called to account.

This case must also proceed because otherwise it will become clear that other owners of care homes can by means of dissolving their partnerships or companies avoid being held to account for their actions.