There is an extensive and long standing debate surrounding the offence of corporate manslaughter. The Corporate Manslaughter and Corporate Homicide Act 20071 is the result of 10 years of legislative deliberation. The term 'wrongs' refers either to specific criminal wrongs or in the Zemiological sense of the term, encompassing a much wider range of activities which cause social harm. In this essay, the term 'wrong' will be used to refer to the wrongs and omissions of companies causing the offence of corporate manslaughter.
The courts have used gross negligence and involuntary manslaughter to apply to corporate manslaughter. The House of Lords in R v Adamako2 set out five conditions necessary for gross negligence; it is this which the courts have used to establish the offence of corporate manslaughter. Who are the powerful? In the context of this essay the obvious definition of 'powerful' is large corporations, who use their position and monetary influence in order to further their own interests.
The influence of powerful companies can be seen specifically in the Bernie Ecclestone scandal3. Clearly, money can mean power, as the average person cannot lobby government; this example clearly shows the difficulties in passing legislation with regards to those with monetary influence. It is not just the big corporations who can be seen as 'powerful', recently Members of Parliament have tried to use Parliamentary Privilege in order to prevent being prosecuted for the 'expense's scandal' and shockingly asking not to sit in the dock4.
These astonishing claims are clearly an example of the defendants trying to present themselves as anything other than criminals, this again demonstrates the difficulty in criminalising those who have influence within government and can be classified as 'powerful'. Another clear example of the 'powerful' is the police, it is very rare that the wrongs of the police are criminalised; this is clearly shown in the publicised cases of Ian Tomlinson5 and Christopher Adler6.
In the context of 'the Act', it's clear that there has been lobbying by the police in order to delay the implementation in relation to the police and prisons. From this brief discussion of the 'powerful' it can be seen that as a collection the powers of these groups has had a significant impact in the passing and watering down of 'the Act', particularly the length of time it took to pass.
In the 10 years it took to pass 'the Act', there has been an average of one Act per year in relation to crime, anti social behaviour and terrorism, legislation directed at members of the public who do not have the means or power to lobby government. Criticisms of the Common law Under the Common law in the UK, Health and Safety laws appear to have been added onto criminal laws as 'an ill fitting and unwelcome extension' (Wells:2006:4).
It is the 'identification doctrine' that has attracted much of the criticism. The doctrine requires there to be a 'controlling mind' of the company7, and it has often been stated that the doctrine 'works best where it is needed least and works least where it is needed most' (Gobert:1994 :401). The case of Tesco Supermarkets Ltd v Natrass8 clearly shows the difficulty with the identification doctrine, it's unsuited to modern corporations who have layers of middle and junior management (Gobert:1994:395).
The requirement to find a direct connection between the Act and senior management has caused the failure of several high profile prosecutions. In particular in the case of P & O Ferries9, it was clear that sloppy procedures and management had a direct relationship to the disaster, the fact that the prosecution failed underlines the difficulties with the identification doctrine. The fact that such a blatant disregard for safety did not present the serious and obvious risk required for prosecution shows a serious deficiency in common law.
(Gault & McGrane:1991:171). The identification doctrine has made common law extremely restrictive and unsuccessful in the prosecutions of large corporations. The systems of Health and Safety regulations tend to decriminalise deaths and accidents (Lacey,Wells and Quick:forthcoming b:1) as prosecutions are brought through the HSE rather than the police and the CPS, such regulation authorities prefer a supportive approach and only bring prosecutions in 20% of cases where death has occurred (Mujih:2008:80).
The fact that prosecutions are not brought by the police inherently means that Health and Safety regulations are unlikely to be seen as criminal, alongside this the term 'regulation' automatically decriminalises the offence. Not only are there significant problems in the law and the perception of those enforcing it, there are also problems in the way in which the law is implemented. Under the normal rules of criminal law for individuals, one can be arrested and interviewed, with plea bargaining10 and other such tactics playing a large part in the production of guilty pleas.
One cannot arrest a company and place such psychological pressure on them, meaning that normal tactics used to produce guilty pleas cannot apply, creating a system within which large companies will always plead not guilty, resulting in a long trial, with complex issues of civil law being brought into play to distract from the main purpose of the trial, this in itself helps to decriminalise the whole procedure.
Alongside this, one can argue that there is almost a dual system of criminal justice as those individually prosecuted often have little money and have to rely on legal aid. Whereas, large corporations and organisations can afford to pay highly skilled defence solicitors11 for extended periods of time, meaning constraints which are normally felt by the less well off have little effect on them. In other words, they can use every due process loop hole possible in order to avoid prosecution.