Sharon Hartles was awarded a Master of Arts in Crime and Justice (with distinction) from the Open University in December 2019. She has an interest in crimes of the powerful, including state and state-corporate crime. In an explicit attempt to move beyond criminology, she draws upon a zemiological approach to evidence the social, political and economic context in which crime is produced and interwoven into society via socio-economic inequalities.
The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH Act) has never been as visibly under the spot-light or as open to public scrutiny as it is currently. The reason this is the case is the loss of life of 72 individuals (and subsequent contempt) which occurred during a preventable and foreseen fire that took place at the Grenfell Tower. This fire occurred on Wednesday 14th June 2017, and has been labelled amongst other things as ‘Britain’s worst fire in a century’. If an event such as this was not tragic enough, it resulted from the failures of a plethora of companies and large organisations fuelled by cost-cutting measures in the pursuit of profiteering.
On Monday 10th June 2019, Scotland Yard announced its intention to pursue suspects for offences of corporate manslaughter and gross negligence manslaughter. However, due to the delayed public inquiry, a 2021 timeframe was given as a date for formal charging decisions. This reveals the clear links to corporate manslaughter and provides the grounding for why this law is now centre stage of media interest. A more recent headline on Thursday 6th February 2020 by the BBC News entitled: ‘Grenfell Tower inquiry backs protection for refurbishment firms giving evidence’ reveals an additional layering of contempt taking the form of ‘protection’ granted to those potentially suspected under the CMCH Act. It is apparent, that such ‘protection’, in the form of impunity, is deeply ironic given the fact that, had ‘protection’ – in the form of health and safety of the Grenfell residents – been the driving force behind the Grenfell Tower refurbishments, ‘protection’ against incrimination would not be required by those who now find themselves facing possible corporate manslaughter charges.
Critical academics with an interest in crimes of the powerful, particularly corporate crimes, are well versed in the ineffectiveness of the CMCH Act. Within this field of study, a large body of data can be readily drawn upon to evidence that in its first ten years only a paltry total of 26 companies have been successfully prosecuted under the CMCH Act. What is even more noteworthy, is that 25 of these companies could have been prosecuted under the previous law. The law of Involuntary Manslaughter was underpinned by the unlawful killing of a human being without malice aforethought. Gross Negligence Manslaughter was a subsidiary element under which successful corporate prosecutions took place. However, this was not without its flaws because it did not reflect the way modern organisations operate, which may have been a factor behind the significant lack of its implementation.
In the 50 years prior to 1998 there were a total of four cases, where individual directors and business owners faced manslaughter charges. Each of these cases was successful because they were small organisations where the management had a more ‘hands on’ involvement. Between 1998 and the introduction of the CMCH Act the number of cases rose to approximately 20 due to a joint protocol between the Police, the HSE and the Crown Prosecution Service. All of these prosecutions had something in common and that was they all concerned small businesses (and not large corporations). In part, this was because it is easier to identify an individual such as the senior manager or director as being ‘a controlling mind’ in small companies, and therefore relatively easier to prosecute. Unlike the previous law, the CMCH Act was designed to encompass the failure of health and safety management, the degree of that failure should determine the corporate and individual charges laid.
The CMCH_Act, defined corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland, and was given Royal Assent on Thursday 26th July 2007, coming into force on Sunday 6th April 2008, and was fundamentally devised to hold both small and large organisations to account. Yet none of those, aforementioned 26 companies prosecuted under the CMCH Act have been large organisations. In contrast to the 26 prosecutions under the law of corporate manslaughter in England, Wales and Northern Ireland, in almost twelve years there have been no prosecutions in Scotland under the law of corporate homicide. For this reason, Claire Baker, Member of the Scottish Parliament put forward a proposal for a Bill to reform the law to ensure ‘where loss of life is caused by the recklessness or gross negligence of individuals, companies or organisations that, where proved, the wrongdoer can be convicted of the offence that reflects the appropriate seriousness and moral opprobrium of what occurred’. The final proposal was lodged with The Scottish Parliament on Tuesday 12th November 2019. This Private Member’s Bill has since received the right to be introduced and subject to the three-stage scrutiny process.
The ineffective nature of implementing corporate law can be seen globally and is not localised to the UK. This can be illustrated through the SNC-Lavalin scandal that demonstrates how: ‘Canada is weak on corporate crime’. The law is manipulated to favour ‘powerful interests, and the unprecedented power of multinational corporations’. Such crafting leaves ‘ordinary people exposed to the harms that result from corporate greed taking precedence over the rule of law’. According to Professor Gary Slapper, ‘Justice is mocked if an important law goes unenforced‘ and this has certainly been exemplified by the lack of successful prosecutions under the CMCH Act, when compared to the thousands of fatalities, resulting from gross breaches of a duty of care. A key criticism of this law is the loophole in the form of the inclusion of section 18, which explicitly states ‘No individual liability’.
On Friday 21st July 2006, in response to the government publishing the Corporate Manslaughter Bill, Dorothy Wright, a founder member of Families Against Corporate Killers (FACK) stated: “Having read it I don’t feel the bill is worth the paper it is written on”. Furthermore, Hazards Campaign noted that FACK met with Labour Government ministers and argued without success, for individual Directors Duties and Responsibilities to be included in a bid to tighten up the Bill. In the light of this, FACK openly claim that the CMCH Act was a betrayal of families as soon as it was passed. Thirteen years in the making (between the initial proposals in 1994 and the introduction of the CMCH Act) its legacy is that companies which kill will never be anything more than symbolically ‘at risk’ of a corporate manslaughter conviction. Therefore, this leads to multiple questions including: what was the purpose of enacting an ineffective law? and: Who stands to benefit from it?
It has taken the death of a further 72 people (increasing the corporate death toll rate) and the high profile nature of the Grenfell Tower tragedy to yet again unmask the ineffectiveness of the CMCH Act.. Almost fourteen years after the government published the Corporate Manslaughter Bill, FACK’s response proved to be predictively accurate. ‘A fine however large is not an appropriate or a proportionate penalty for the crime of killing a person by flouting health and safety law which is in fact criminal law. Larger corporations will pay the fine and carry on killing and maiming as usual’.
The Grenfell survivors, those bereaved and the community, should not have to play a pivotal role in pursuing truth, justice and accountability. However, their publicised plight may serve to save other families from suffering the same fate at the hands of large organisations/corporations whose actions appear to be beyond the reach of the CMCH Act. The legislation has to be reviewed. Adopting Claire Baker’s Proposed Culpable Homicide (Scotland) Bill which encompasses an appropriate sentence for the wrongdoer is a fairer form of justice. For this reason debate around enacting reform into the UK’s Corporate Manslaughter and Corporate Homicide laws must be prioritised.
Originally posted on: sharonhartles.weebly.com
Sharon Hartles, Open University
Images: courtesy of the author