Obscuring Corporate Violence: Corporate Manslaughter in Action
| DOI | http://doi.org/10.1111/hojo.12345 |
| Author | JASMINE HÉBERT,STEVEN BITTLE,STEVE TOMBS |
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
The Howard Journal Vol58 No 4. December 2019 DOI: 10.1111/hojo.12345
ISSN 2059-1098, pp. 554–579
Obscuring Corporate Violence:
Corporate Manslaughter in Action
JASMINE H´
EBERT , STEVEN BITTLE
and STEVE TOMBS
Jasmine H´
ebert is PhD student and Steven Bittle is Associate
Professor, Department of Criminology, University of Ottawa, Canada; Steve
Tombs is Professor of Criminology, The Open University
Abstract: In April 2008, the Corporate Manslaughter and Corporate Homicide Act
2007 (CMCHAct) came into force in the UK. Since then, the Act has failed to live up
to expectations, resulting in only 26 convictions in the first decade of its existence, despite
thousands of work-related fatalities during this time. This article critically analyses these
CMCHAct prosecutions in order to chronicle the problems of the law in action and to
demonstrate how the Act serves to downplay the seriousness of corporate killing. In so
doing, we approach law as an ‘active discourse’ that is mutually constitutive of the broader
social formation, so that it both creates, but is also a product of,the capitalist social order.
Thus we explore the extent to which the CMCHAct ultimately privileges dominant beliefs
that corporate killing is not ‘true’ crime and that corporate capitalism is an inherent good
that must be defended, not disrupted.
Keywords: corporate manslaughter; corporate violence; regulation; safety
crimes
It is now well documented that, following a series of high-profile, multiple-
fatality disasters in Britain during the 1980s and the 1990s, egregiously
emphasising the inability of the common law of manslaughter to hold large,
complexly organised businesses to account for such deaths, a series of legal
reform processes and struggles around these were set in train – the eventual
result being the Corporate Manslaughter and Corporate Homicide Act
2007 (CMCHAct) (Almond and Colover 2010; Glasbeek 2017; Tombs and
Whyte 2015). This had been 13 years in the making. Consistent with the
historic reluctance of using criminal law against the powerful, there had
been notable resistance against the criminalisation of this form of corporate
harm (Bittle and Stinson 2018; Tombs and Whyte 2015), with the path
from original suggestions and demands to the enactment of the law full
of conflict, controversies, dead ends, and governments succumbing to the
voices of powerful anti-regulatory groups (Gobert 2008; Tombs 2018).
554
C
2019 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol58 No 4. December 2019
ISSN 2059-1098, pp. 554–579
The law’s key legal innovation was to no longer require the identification
of specific individuals and their guilt as contributing to work-related death
(Tombs 2018). Instead, a prosecution under the Act requires a failure in the
way in which the corporation is organised or managed that amounts ‘to a
gross breach of its duty of care’ (Crown Prosecution Service 2015). This, in
turn, requires evidence that the failure fell ‘far below what can reasonably
be expected’ and may include consideration of the ‘attitudes, policies, and
systems of accepted practices’ of the organisation (Tombs 2018, pp.4–5).
When the new law was in deliberation, there had for some time been the
possibility that directors could be disqualified and potentially prosecuted
alongside a corporation being convicted of manslaughter (Tombs 2018,
pp.4–5). When these debates first started, there was little reason to believe
that an individual should not or could not ‘be convicted for aiding, abet-
ting, counselling, or procuring an offence of corporate killing’ (CMCHAct,
p.13). Significantly, the original consultation documents from the Home
Office indicated its willingness to consider holding directors and officers
liable under the CMCHAct for their role in the corporate killing offence.
However,following the organised lobbying of employers, directors, and or-
ganisations, the CMCHAct explicitly ruled out this possibility. This change
was, and remains, a major criticism of the law, as the people who own,
control, and profit from the business cannot be held liable under the same
law that allegedly seeks to hold corporations accountable for the harms
they cause.
Further, the existence of the CMCHAct seems to make individuals less
likely to be prosecuted under health and safety law. Tombs (2018, pp.2–
4) compares data on convictions under the old common law offence of
manslaughter with those under the CMCHAct. Until 2009, when the last
case was completed under the previous common law regime, all but one
included a conviction of a director of gross negligence manslaughter.Com-
paratively, of the 26 convictions (at the time of this writing) for corporate
killing under the CMCHAct, only four involved convictions of a company
director (Tombs 2018, p.4). Thus, an effect of the new law appears to be
an exchange of liability – directors securing immunity from prosecution
for themselves by offering up the corporate entity through a guilty plea
(Tombs 2018). Further, there is little evidence thus far that the new law
has lived up to expectations that it would make it easier to prosecute large,
complex corporations: of the 26 convictions, 25 involved micro- or small
companies, with only one of any significant size, CAV Aerospace, a parent
company of some 460 employees and an annual turnover of £73 million.
That said, the facts of the latter case were so egregious, and the evidence
of senior management playing a substantial element in the gross breach
at issue was so clear (Roper 2018), that this looks anomalous on a whole
series of counts and does not establish the fitness for purpose of the new
law (Tombs 2018).
Furthermore, Sentencing Guidelines accompanying the CMCHAct state
that: ‘punitive and significant fines should be imposed both to deter and
to reflect public concern at avoidable loss of life’ (Sentencing Guide-
lines Council 2010b), with the anticipation that ‘appropriate’ fines would
555
C
2019 The Howard League and John Wiley & Sons Ltd
To continue reading
Request your trial