A decade since the implementation of the Corporate Manslaughter and Corporate Homicide Act 2007 - NOT fit for purpose
By Sharon Hartles - 1st October 2018
It has been the case since 1965 that companies in the UK could be liable for corporate manslaughter. However to do so, director's or owner's of that company also had to be tried for gross negligence manslaughter, therefore the breach of duty of employer care demonstrates excessive irresponsibility deserving of criminal punishment. Without both of these criteria being met company directors could not be prosecuted. This meant that only a handful of very small companies were ever successfully prosecuted for corporate manslaughter because proving both corporate manslaughter and gross negligence manslaughter became tenuous to ensure the corporation could be identified with the small business owner or the sole director of the company.
In the wake of a series of disasters: Kings Cross fire (1987), Clapham train crash (1988), the Piper Alpha oil rig fire (1988) the sinking of the Marchioness (1989), the Purley train crash (1989), Hillsborough stadium (1989), the Southall rail crash (1997), the Southampton General Hospital failing (2000), and the Hatfield crash (2005); it became very clear that the law as it stood could not deal with large complex organisations. These organisations also managed to kill many more people because of their ability to exploit legal loopholes to cover their tracks; by ensuring that everyday safety-critical operational decisions are not taken at board level and are rarely taken by one individual in isolation. Such a diffusion of responsibility seemed to exonerate large-scale culpable businesses.
That led to a law commission proposal in 1996 for a reform of corporate manslaughter law that allowed for directors to be prosecuted under that legal precedent. Major political parties and corporations stopped resisting and opposing those proposals when the clause was removed. With little irony, under section 18 of the Corporate Manslaughter and Corporate Homicide Act 2007, (henceforth, CMCHAct) enacted in 2008, it explicitly states "No individual liability". Thus, a Corporate Manslaughter case can only pursue organisations and this clause seems to operate as a loophole in favour of powerful directors who remain untouchable. Therefore they cannot be found guilty or imprisoned for their corporate harms.
17th century law up until 1964 abided by the principle that "Companies have a soul to damn, but no body to kick". Between 1965 until 2007 the directors or owners of a company had to be accused for gross negligence manslaughter alongside corporate manslaughter, permitting the sanction that there was both a soul to damn and a body to kick. Under the new law there is no longer a soul to damn or a body to kick.
In the past ten years since the law was enacted there have been a total of 21 convictions where corporations have been successfully prosecuted for corporate manslaughter, three acquittals and 33 cases are under active consideration. Sanctions in these cases have ranged from fines of £8,000 to £600,000 (£600,000 equating to 10% of gross profit for 2015). Unsurprisingly, none of those 24 companies have been large organisations due to the dispersal of accountability. What is more noteworthy is that with the exception of one, all of those companies could have been prosecuted under the previous law.
Prior to 2008, directors or senior managers had to be prosecuted alongside the company, within the CMCHAct they cannot be. In spite of the CMCHAct directors or senior managers who hand over evidence against their companies corporate 'wrongdoings', are rewarded for their good deeds with further immunity from prosecution. What we have is corporations and small companies ending up in the courts, while directors and senior owners in fact enjoy greater impunity now than what they did between 1965 and the CMCHAct coming into force in 2008.
In 2017, "the Met Police notified the Royal Borough of Kensington and Chelsea and the Kensington and Chelsea Tenancy Management Organisation that there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter" subject to the CMCHAct, for the unlawful murder of 72 people in the Grenfell Tower Tragedy. At best, a successful prosecution of the case currently under investigation will conclusively test whether this law is fit for purpose in terms of holding relatively large organisations like local authorities to account. At worst, it will prove that the law is merely symbolic and not fit for purpose (not worth the paper it was written on).
To sum this all up, as long as directors and senior owners remain exempt for their alleged manslaughter charges, under section 18 of the CMCHAct: authorities, corporations and companies have no soul to damn and no body to kick. A decade on, disasters and tragedies as a result of corporate manslaughter and homicide will continue to be appeased through symbolic sanctions in the form of fines, which only serves to perpetuate the ineffectiveness of this piece of legislation and the urgent need for this law to be reformed by ditching section 18.
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Copyright © Sharon Hartles 2020