The UK’s corporate killing law: Un/fit for purpose?

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.

Obscuring Corporate Violence: Corporate Manslaughter in Action

“…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 ; Tombs and Whyte ), 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 ; Tombs ).…”

“…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. Comparatively, 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 , 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 ).…”

“…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 ). 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 , 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 , pp.4–5).…”

“…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 , 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 , 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, abetting, counselling, or procuring an offence of corporate killing’ (CMCHAct, p.13).…”

“…Further, the existence of the CMCHAct seems to make individuals less likely to be prosecuted under health and safety law. Tombs (, 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.…”