The UK’s corporate killing law: Un/fit for purpose?
| Published date | 01 September 2018 |
| DOI | 10.1177/1748895817725559 |
| Date | 01 September 2018 |
| Subject Matter | Articles |
research-article2017
Article
Criminology & Criminal Justice
2018, Vol. 18(4) 488 –507
The UK’s corporate killing
© The Author(s) 2017
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law: Un/fit for purpose?
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https://doi.org/10.1177/1748895817725559
DOI: 10.1177/1748895817725559
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Steve Tombs
Abstract
The annual total of occupational deaths in the UK is measured in the tens of thousands, yet the
overwhelming majority attract no criminal justice attention. More recently, a very small number
of deaths have generated attempts to prosecute companies for manslaughter. In 1996, following
a series of multiple fatality ‘disasters’, the Law Commission proposed for a new law on corporate
manslaughter; in 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 came
into force. It is with the implementation and effects of this Act that this article is concerned. It
begins by setting out the dimensions of the new law before analysing the key themes that have
emerged from its use to date. In conclusion, I consider whether the law has proven to be unfit for
purpose—which begs the question of what that purpose might have been.
Keywords
Corporate crime, enforcement, manslaughter, regulation
Introduction
The body which regulates workplace health and safety in Great Britain, the Health and
Safety Executive (HSE), records over 13,000 deaths per annum, the majority of which
are the result of work-related ill-health (HSE, 2016: 1, 4). Other calculations double
(Hämäläinen et al., 2009) or quadruple (O’Neill et al., 2007; Palmer, 2008), this offi-
cial figure. Whichever data one accepts, this annual total ranks highly in comparison
with virtually all other recorded causes of premature death in the United Kingdom
(Rogers, 2011).
The overwhelming majority of these deaths attract no regulatory let alone criminal
justice attention. HSE investigates a sub-set of deaths – the fatal injuries directly reported
to it. In 2015/2016, of a total 660 convictions of duty-holders (employers), 109 of these
Corresponding author:
Steve Tombs, Professor of Criminology, The Open University, Walton Hall, Milton Keynes, MK7 6AA, UK.
Email: Steve.tombs@open.ac.uk
Tombs
489
followed an occupational fatality (albeit the deaths occurring over several years previ-
ously) (HSE, 2017). Typically, the penalty on conviction is a monetary fine, with the
average fine related to a fatality for 2015/2016 being £62,148 (HSE, 2017).
More recently, however, a very small number of deaths have generated attempts to
prosecute companies for manslaughter.1 In 1996, following the collapse of several trials
seeking to hold large, complex companies to account for multiple fatality ‘disasters’, the
Law Commission set out detailed proposals for a new law on corporate manslaughter
(Law Commission, 1996). What became known by many as the Corporate Killing law
was discussed in various forms for the next 12 years until 6 April 2008, when the
Corporate Manslaughter and Corporate Homicide Act 2007 came into force. It is with the
implementation and effects of this Act, long in preparation, that this article is concerned.
It begins by setting out the context for, and key dimensions of, the new law before ana-
lysing the key themes that have emerged from its use to date. In conclusion, I consider
whether the law has proven to be unfit for purpose – a consideration which, of course,
begs the question of the nature of what that purpose might have been.
The Corporate Manslaughter and Corporate Homicide Act
2007
On 8 December 1994, OLL Ltd became the first company in English legal history to be
convicted of manslaughter (see Table 1) after four school-children were killed while
canoeing in the ‘care’ of the company. OLL Ltd was small, so it was easy to find the
company’s ‘controlling mind’, the risks to which the students were exposed were both
serious and obvious, and there was clear evidence that the managing director was aware
of these. Between 1994 to 20092 there were eight convictions for work-related corporate
manslaughter across UK jurisdictions, all of very small companies (see Table 1).
The fact that these convictions had all been against very small organizations raised the
central legal problem in applying the common law offence of manslaughter to a larger
corporate entity; the legal test of identification required identifying a company’s acts and
omissions with those of one or more controlling minds, corporate guilt being dependent
on the prove-able guilt of one or more senior individuals (usually, directors). There was a
clear, unjust irony here: while it was easier to apply the law to small companies, the very
size and complexity of organizations such as P&O, Great Western Trains and Railtrack
were simultaneously key factors in producing multi-fatality disasters and the key obsta-
cles to any prosecution for corporate manslaughter being successful under common law.
In the context of consistent failures of the law to hold companies to account for any
of a long series of high profile disasters (Tombs and Whyte, 2003), the Law Commission,
in 1996, published a fully developed set of proposals for a new law on corporate man-
slaughter (Law Commission, 1996). Yet the path from the Law Commission’s detailed
proposals to the 2007 Act was full of dead ends, controversies, broken promises and
governments succumbing to the siren voices of the Confederation of British Industry,
Institute of Directors and other employers and their organizations (Tombs and Whyte,
2003). The Act was finally passed in 2007, though it only achieved Royal Assent on the
last day of the 2006–2007 Parliamentary session without which, as a ‘hangover’ Bill
from the previous parliamentary session, it would have been lost (Doward, 2007).
490
Criminology & Criminal Justice 18(4)
Table 1. Cases involving convictions of companies for manslaughter, 1994–2009.
Company
Death(s) in question/date
Sentence/date of conviction (Company,
Director)
OLL Ltd
Simon Dunne, Claire
Fined £60,000, November 1994
Langley, Dean Sayer and
Peter Kite, Company Director, was
Rachel Walker, March 1993
sentenced to three years’ imprisonment
Jackson Transport
James Hodgson, May 1994
Fined £15,000, September 1996
(Ossett) Ltd
Alan Jackson, the Company Director, was
sentenced to 12 months’ imprisonment
English Brothers
Bill Larkman, June 1999
Fined £30,000, August 2001
Ltd
The Crown Prosecution Service (CPS)
dropped a manslaughter charge for one of
the company’s directors, Melvin Hubbard
in exchange for a guilty plea from the
company
Dennis Clothier
Stephen Hayfield,
Fined £4000, October 2002
and Sons
November 2000
Dennis Clothier, Company Director, was
sentenced to 240 hours of community
service
Teglgaard
Christopher Longrigg, April
Fined £25,000, February 2003
Hardwood (UK)
2000
John Horner, Company Director,
Ltd
was sentenced to a five-month prison
sentence – suspended for two years.
William Horner was found not guilty of
manslaughter
Nationwide
Ben Pinkham, February
Fined £90,000 (including Health and Safety
Heating Services
2003
at Work Act 1974? (HSWact) offences),
Ltd
July 2004
Alan James Mark, Company Director, was
sentenced to one year’s imprisonment
Keymark Services
Steven Law, Neil Owen and
Fined £50,000, December 2004
Benjamin Kwapong,
Melvyn Spree, Company Director, was
February 2002
sentenced to seven years’ imprisonment
IC Roofing
Darren Hoofe, November
Fined £10,000 for manslaughter and
2005
ordered to pay costs of £20,000, January
2009
Colin Cooper, Company Director, was
sentenced to 12 months’ imprisonment
and disqualified from being a director of a
company for three years
Sources: http://www.corporateaccountability.org.uk/manslaughter/cases/convcases/1.htm; http://www.corpo-
rateaccountability.org.uk/manslaughter/cases/convcases/2.htm; and http://www.corporateaccountability.org.
uk/manslaughter/cases/convcases/1.htm.
The Corporate Manslaughter and Corporate Homicide Act 2007 (henceforth,
CMCHAct) covered corporate bodies – its scope was not confined to for-profit organi-
zations. Explicitly excluded was the possibility of directors and senior managers being
prosecuted under the Act. In its Comments on the Law Commission’s Draft Involuntary
Tombs
491
Homicide Bill, the Government had stated that it considered ‘that there is no good
reason why an individual should not be convicted for aiding, abetting, counselling or
procuring an offence of corporate killing’ (Home Office, 2000: 32). In 2002, that view
was wholly reversed – and it was at this point that the Institute of Directors moved
from opposition to the Government’s reform proposals to vociferous support for a
change in corporate manslaughter law (see, for example, The Safety and Health
Practitioner, December 2002: 4). Thus section 18 of the Act explicitly prevents any
individuals – be they senior managers, directors, owners, shareholders being prose-
cuted under the Act. Titled ‘No Individual Liability’, s. 18 states that ‘[a]n individual
cannot be guilty of aiding, abetting, counselling or procuring the commission of an
offence of corporate manslaughter’. Not only was this exemption from prosecution for
individuals seen by many as a serious watering down of the proposed legislation, but
it is in and of itself a rather curious, anomalous clause – most criminal offences in fact
allow for prosecution of anyone complicit in those offences in...
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