A major obstacle to the criminalization of corporate misconduct has been the absence of a consensus as to whether a statutory criminal offence of corporate misconduct is preferable to more traditional civil approaches. Directors of companies fiercely resist, while those representing victims advocate tougher sanctions. The public perception of culpability for major disasters involving large companies, is that the company, rather than an individual is the correct body to be blamed (Smith,2002).
As the law in England and Wales currently stands, the only organizations which can be prosecuted for manslaughter are Companies. Regardless of how negligent or recklessly they act, unincorporated organizations, Schools and Police Forces cannot be prosecuted (Smith, 2002(a)). In addition, the only way to obtain a conviction against a Company, is under the 'doctrine of identification' (Law Commission, 1996), i. e. to successfully prove that an individual was guilty of manslaughter and that that individual was a ' directing mind' who embodied the organization ( Centre for Corporate Accountability, 2003).
The failure to convict in several major disasters in recent years, has shown the current law to be inadequate. In the last decade, despite over 3,000 workplace deaths, there have been only 2 companies successfully convicted of manslaughter (Tolson Messenger, 2003) The larger the company, the more likelihood of escaping accountability, as the structure of the such organizations involve many tiers of management with degrees of autonomy for deciding local practices. Even though death may have resulted from serious management failures, the legal or evidential standard to convict a director cannot be met.
The Sheen Report (Department of Transport, 1987) into the Herald of Free Enterprise disaster highlighted P&O's lack of safety policies, and that the 'disease of sloppiness' infected the whole workforce. The notion that a number of innocent acts, if aggregated, could be construed as an illegal one, proving corporate culpability was rejected by the courts in R v HM Coroner for East Kent, ex parte Spooner  88 Cr App R 10. The finding of the court appears to be at odds with public opinion, and has not been accepted as a final judgement on the issue, to the satisfaction of commentators, and the debate continues, as James Gobert illustrates:-
"When a crime occurs in the course of business, it is likely to be the result of a breakdown in more than one sphere of the company's operation. Policies may be misguided in conception, inadequately supervised, and incompetently carried out. To capture the full extent of a company's wrongdoing would require an aggregating of these failures". (Gobert, 1994:p722) To restore public confidence the Government produced a consultation paper in May 2000 proposing a new offence of Corporate Killing (Home Office, 2000). The offence would effectively remove the necessity to convict an individual before proceedings could be brought against a company.
Crown immunity would be removed and the offence would encompass up to 3. 5 million enterprises, including partnerships, hospital trusts, charities, trade unions and foreign companies doing business in Great Britain. In November 2003, the Government announced the postponement of its plan to introduce an offence of Corporate Killing. Supporters of the proposals reacted furiously, pointing out that action had been promised in the 1997 manifesto, yet has been omitted from six Queens speeches. Kevin Curran of the GMB said :- "I am dismayed that we still have no prospect of tough legislation on Corporate Manslaughter.
Labour promised us tough action against employers who kill or maim over a decade ago" (BBC, 2003). The failure of the government to follow through the implementing of an offence of Corporate Killing, may lead to those seeking justice for victims of corporate failing to pursue remedy through the European Court Of Justice for breach of the ECHR Article 2. As Keir Starmer points out :- "Article 2 …. imposes an obligation on the authorities to put in place effective criminal law provisions to deter offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of such provisions.
It may also include in certain well-defined circumstances, a positive obligation on the authorities to take preventative operational measures to protect an individual who's life is at risk from the criminal acts of another individual". (Starmer 1999:p89 – 90) As a Company is a legal entity and can be liable as an 'individual', it could be argued that by not implementing an offence of Corporate Killing, that the Government is failing to fulfill its obligations under Article 2.
These problems, or impediments, which have prevented efforts to bring the actions of companies within the terms of criminal justice systems traditionally aimed at punishing individuals can be seen as inevitable. The huge problem facing the legal systems is illustrated most clearly in the academic writing on the matter and in particular by CMV Clarkson in his article 'Corporate Culpability' where he demonstrates a range of possible Mechanisms of Corporate Culpability.
He suggests that the creation of a corporate mens rea doctrine to act as a kind of legal fiction is possibly the best way forward. As he illustrates, "If the corporate culture permitted or encouraged the wrongdoing, it may be easy to infer that the corporate body itself must have foreseen the possibility of the harm occurring, or that it has created an obvious and serious risk of the wrong resulting, or that the consequence was virtually certain to occur from which intention may be inferred.. (Clarkson 1998: p10)
The Government's own views on the benefits of corporations to the national economy may impede progress. Gobert believes that the Government is loathe to compromise its own financial position by condemning corporate activities due to its main concern that an over regulatory commercial environment could deter inward investment and drive out existing corporations (Gobert, 1994). Conversely, although companies may move to different countries for tax and regulatory reasons, could a company justify moving because they couldn't commit murder under one particular jurisdiction's laws.
- BBC, (2003), Corporate Manslaughter plan dropped, on http://news. bbc. co. uk/1/hi/business/2459465. stm accessed on 17/11/2003
- Centre for Corporate Accountability (2003) on http://www. corporateaccountability. org/campaign. htm accessed on 19/11/2003
- Clarkson C. M. V. ,(1998), Corporate Culpability in 1998 2WebJCLI at page 10 of 14 Department of Transport, (1987), The Merchant Shipping Act 1894, mv Herald of Free Enterprise, Report f Court no 8074 (Sheen Report), London, HMSO http://www.homeoffice.gov.uk