The third attempt by the Crown to bring a prosecution against the former owners of the Rosepark Nursing home, in which 14 elderly residents died in a fire, failed in ignominious fashion yesterday as Lord Matthews branded the indictment "inept".

"The surviving partners are not in law liable for the criminal acts of the firm, assuming there were any, which is a matter on which I cannot comment," he said.

"Individual responsibility is provided for in Section 36 of the Health and Safety at Work Act 1974 but the Crown have not embarked upon that route, no doubt for evidential reasons."

The first indictment against the individual owners led to the dismissal of the charges at a trial brought in February 2007. Lord Hardie ruled at that time that the alleged offences could only be carried out by employers, and the three owners of the home name din the indictment were not employers in law. Then, in July 2008, the second indictment also failed because the partnership named in the second indictment was now dissolved.

A third indictment was served in October on Thomas Balmer, Anne Balmer and Alan Balmer as the whole surviving partners of the now dissolved firm of Rosepark Care Home. 

Lord Matthews called on the Law Commission to look at reforming this area of law.

"It is clearly in the public interest that the Crown investigate matters such as this and attempt to prosecute them if they can," he said.

"The fact is that the law does not allow them to do so, at least in the form chosen. It may be that this is a matter which might usefully be considered by the Scottish Law Commission or the Scottish Parliament. However, as the law stands I have no alternative but to dismiss charges 1 to 17 of this indictment”.

Lord Matthews full comments can be read below.

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“This is the latest in a series of indictments arising out a tragic fire on 31 January 2004 at Rosepark Care Home, otherwise known as Rosepark Nursing Home, in Uddingston. The fire resulted in the deaths of fourteen residents, injury to four others and the evacuation of the remaining twenty two. The indictment libels various statutory contraventions, the nub of these being failures in duties incumbent on employers. At the material time the employer was the partnership which ran the nursing home.

The case called before me for argument on a number of Minutes by William Thomas Balmer, Anne Balmer and Alan Thomas Balmer.

Two previous indictments have been the subject of successful challenges on the basis, respectively, of relevancy and competency.

The difficulty which has given rise to the challenges is the fact that the partnership was dissolved on 28 February 2005.

The first indictment was held to be irrelevant in that it was directed against the individuals who had been the partners. They were not the employers. As I have indicated, the employer was the partnership, partnerships having a separate legal personality in Scots Law.

The second indictment was held to be incompetent. It was laid against the dissolved firm. Dissolved firms cannot be prosecuted.

This indictment, so far as relevant for the purposes of this Note, namely in relation to charges 1 to 17, is directed against the named individuals as the surviving partners and as such partners only.

That is only intelligible as being yet another attempt to indict the dissolved firm The advocate depute was driven to accept that that was the case and he was right to do so. That is fatal to this indictment.

Even if that concession was wrong and this is truly an attempt somehow to convene the partners, it is in my opinion inept.

The surviving partners are not in law liable for the criminal acts of the firm, assuming there were any, which is a matter on which I cannot comment. Individual responsibility is provided for in Section 36 of the Health and Safety at Work Act 1974 but the Crown have not embarked upon that route, no doubt for evidential reasons. In any event, prosecuting someone as a partner only does not mean anything in my opinion, unless, as I have indicated, it is truly a means of indicting the partnership.

Furthermore, the partners as such are no more the employers than they were as individuals and the indictment is irrelevant, if it is an attempt somehow to indict them rather than the firm.

A number of devolution issues have also been raised. I regard them as effectively superseded but the Note of which this is but a brief summary deals with them and sets out fully the competing contentions which I have had to consider on the more general issues, as well as my reasons for holding that the indictment, so far as directed against the Minuters is incompetent and irrelevant.

It is clearly in the public interest that the Crown investigate matters such as this and attempt to prosecute them if they can The fact is that the law does not allow them to do so, at least in the form chosen. It may be that this is a matter which might usefully be considered by the Scottish Law Commission or the Scottish Parliament. However, as the law stands I have no alternative but to dismiss charges 1 to 17 of this indictment”.