Where Has Corporate Killing Gone?

This piece was written before the Labour Government brought forward proposals to introduce an offence of corporate killing.

103 people have been killed as a result of gun-related crime, according to the latest Home Office figures (2001/2).¹Â The Government has rightly been forced into taking action – increased sentences (a 5 year minimum sentence for possession), new controls on the possession of air weapons and replica weapons and a gun amnesty are amongst some of the measures brought forward. In addition, a high-level summit was arranged bringing together senior representatives from the organisations striving to tackle gun crime. The year before, the media and public outcry was focused on rising levels of mobile phone thefts and again the Government took immediate action.

But also in 2001/2, 249 people were killed going about their everyday lives but no action was taken by Government. How could this happen? Why has this not been brought to our attention before? The difference is that these people were killed at work.

The Labour Government promised to reform the existing, obviously inadequate, law of Involuntary Manslaughter in October 1997 and to introduce an offence of Corporate Killing. The commitment to legislate was restated in the 2001 manifesto where it was said that the Government would ‘make provisions against corporate manslaughter’. This has been reiterated in various public and parliamentary statements since. But we are still waiting.

Under the current law, a company can only be convicted of manslaughter if a senior manager has first been found guilty as an individual. The court has to decide that a director had a ‘controlling mind’ over the circumstances leading to the death. If the director is found not guilty then so is the company. In large complex private sector companies, it is not always possible to identify the responsible manager or director. There have been very few successful convictions for corporate involuntary manslaughter.

The Law Commission originally recommended a new ‘Involuntary Homicide Bill’ in 1996 and the Home Office issued a consultation paper on measures in May 2000. In this the Government proposed three new offences:

• Reckless killing – when a person was aware of the risk of serious injury or death but took the risk – penalty of life imprisonment;
• Killing by Gross Carelessness – where a person caused a death and should have appreciated the risk – maximum penalty of 10 years imprisonment;
• Corporate Killing – if a death was caused by a ‘management failure’ where the company’s conduct falls ‘far below what could reasonably be expected’.²Â The companies themselves would be made liable for deaths caused as a result of management failure – penalty of an unlimited fine.

A seven-page letter to companies requesting their input specifically into an impact assessment for the proposed new offences was sent out in Summer 2002. Industries targeted by the letter include those with particularly high injury rates – transport, construction, mining and some sectors of manufacturing.

Corporate killing legislation would force companies to take the issue seriously by making Board members and directors directly liable for deaths, increasing the possibility of prosecutions. They would be exposed to the threat of jail and disqualification, rather than simply fines from the Health and Safety Executive.

Groups opposing the moves have suggested that they are ‘legally unworkable’. Companies and their representatives, such as the CBI, have been lobbying hard against the Government’s proposals from the early days. The CBI believes that companies ‘could be left defenceless’ if individual directors can be blamed arguing instead that ‘everyone who works for an organisation must take reasonable care for their own health and safety and that of the people around them’.³

Whilst the position adopted by business may be understood, it remains less clear what the aims of the Government are. The Government has brought forward some important pieces of legislation to hold businesses to account for their actions since 1997. There are several important examples of legislation which mean that Directors face imprisonment including:

• Financial Services & Markets Act 2000 (maximum penalty, 7 years imprisonment);
• Competition Act 1998 (maximum penalty, 2 years imprisonment);
• Anti-Terrorism Crime & Security Act 2001 (maximum penalty, life imprisonment).

All these pieces of legislation carry criminal liabilities for Directors and these are on top of legislation which pre-dates the Labour Government, such as the Computer Misuse Act 1990 and the Environment Protection Act 1990 amongst others. However, since 1997 these criminal liabilities have primarily been for financial and market breaches. When it comes to a death then there is currently no such liability.

It is still all too often left to bereaved families to take forward campaigns to find justice such as the family of Simon Jones, killed at Shoreham Dock. The Centre for Corporate Accountability (CCA) also plays an important role in pushing for reform and maintaining pressure on policy-makers.

2004 has been mooted as a possible timeframe for legislation, but we have already been waiting since 1997 and there are no guarantees that there will not be more consultation while the Government tackles thorny issues such as Crown exemption.

Think of the victims of the Southall, Paddington, Clapham, Hatfield, Potters Bar and Ladbroke Grove rail crashes, the Kings Cross fire, the sinking of the Herald of Free Enterprise, and the Bradford City fire, and ask yourself why a Bill has not already found its way onto the statute book. Even if the Government does ever get around to passing legislation, the time elapsed has meant that hundreds may have died as a result of inaction.⁴

• ¹Â Firearms were used in 12% of the 858 homicides recorded in the British Crime Survey for the 12 months to September 2002
• ²Â The Financial Times, 1 October 2002
• ³Â CBI News Release, 10 October 2000
• ⁴ Many thanks to Matthew Davies and Sam Hinton-Smith for comments