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Regulatory Reform (Scotland) Act 2014

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This is the original version (as it was originally enacted).

Vicarious liability

38Vicarious liability for certain offences by employees and agents

(1)Subsection (2) applies where a person (“A”) commits a relevant offence while acting as the employee or agent of another person (“B”).

(2)B also commits the relevant offence and is liable to be proceeded against and punished accordingly.

(3)Where B is charged with a relevant offence by virtue of subsection (2), it is a defence for B to show—

(a)that B did not know that the relevant offence was being committed by A,

(b)that no reasonable person could have suspected that the relevant offence was being committed by A, and

(c)that B took all reasonable precautions and exercised all due diligence to prevent the offence being committed.

(4)Proceedings may be taken against B in respect of the relevant offence whether or not proceedings are also taken against A in respect of that offence.

39Liability where activity carried out by arrangement with another

(1)Subsection (2) applies where, in the course of carrying on a regulated activity—

(a)a person (“A”) commits a relevant offence,

(b)at the time the offence is committed, A is carrying on the regulated activity for another person (“B”), and

(c)B manages or controls the carrying on of the regulated activity.

(2)B also commits the relevant offence and is liable to be proceeded against and punished accordingly.

(3)Where B is charged with a relevant offence by virtue of subsection (2), it is a defence for B to show—

(a)that B did not know that the relevant offence was being committed by A,

(b)that no reasonable person could have suspected that the relevant offence was being committed by A, and

(c)that B took all reasonable precautions and exercised all due diligence to prevent the offence being committed.

(4)Proceedings may be taken against B in respect of the relevant offence whether or not proceedings are also taken against A in respect of that offence.

(5)For the purposes of subsection (1)(b), A is carrying on a regulated activity for B whether A is carrying on the activity—

(a)by arrangement between A and B, or

(b)by arrangement with, or as employee or agent of, any other person (“C”) with whom B has an arrangement under which C is to carry on the regulated activity.

(6)For the purposes of this section, “regulated activity”—

(a)has the meaning given in section 17(3), and

(b)includes activities specified in an order made by the Scottish Ministers for the purposes of this section.

(7)An order under subsection (6) may specify only activities that are environmental activities within the meaning of section 17.

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