Gobert, James --- "The Politics of Corporate Manslaughter - The British Experience" [2005] FlinJlLawRfm 1; (2005) 8(1) The Flinders Journal of Law Reform 1

THE POLITICS OF CORPORATE MANSLAUGHTER — THE BRITISH EXPERIENCE

JAMES GOBERT[†]

In 1994, the Law Commission^[1] reviewed the law of manslaughter as it applied to corporate entities and found it wanting and in need of radical reform.^[2] A recommendation followed in 1996 to create a new offence of corporate killing based on a management failure that fell far below what could reasonably be expected of the company in the circumstances and was one of the causes of a death.^[3] In its 1997 election manifesto, the Labour Party committed itself to introducing such a law.^[4] Three years later, in May of 2000, following a spate of fatal rail crashes, the by now Labour government published a consultation paper on the reform of the law of involuntary manslaughter.^[5] Accepting the Law Commission’s views, the government, with minor modifications, endorsed the proposal for an offence of corporate killing.^[6] In its 2001 election manifesto, the Labour Party reiterated its commitment to enact such an offence. Yet, as this article is being written, in November of 2004, ten years after the Law Commission first examined the topic, and four years after the government initiated a consultation exercise designed to last only a matter of months, no bill has been submitted to Parliament. Despite having trailed the prospect of such a bill in the run-up to the Queen’s speech in both 2002 and 2003, the government in the final analysis decided not to include it.

I INTRODUCTION

In the 1940s the sociologist Edwin Sutherland coined the term ‘white collar’ crime to describe a branch of crime perpetrated by high status business executives who regularly misled legislative committees, conspired to eliminate competition and generally engaged in questionable conduct that was antithetical to the public interest.^[7] Within Sutherland’s category of white collar crime was included what is now referred to as corporate crime; i.e, offences for which a company (as distinct from individuals within the company) might properly be held legally responsible.

Sutherland’s critics pointed out that much of the misconduct that he was writing about was not, in fact, illegal (in the sense that there were no laws that forbade it), and that those he branded as white collar criminals had never been convicted of a crime.^[8] Rather, Sutherland’s criminological compilation appeared to reflect his personal conception of what the law should be. Sutherland’s detractors may have been technically correct, but their criticisms raised an even more intriguing issue: if Sutherland had pinpointed a gap in the law, how had corporate and white collar misconduct managed to slip through it? Why had such harmful misconduct as Sutherland had identified not been made criminal? The answer may lie in the politics of corporate criminality.

It is hardly surprising that there are no groups which campaign on behalf of thieves and burglars, no advocates who champion the decriminalisation of assault and battery, and nobody who would seriously suggest that murder or manslaughter should not be illegal. Yet the picture changes when the putative offenders are not common criminals but business executives and companies. Now corporate lobbyists will seek to persuade MPs to vote against bills that would criminalize misconduct that occurs in a corporate setting or, failing that, to water down any bills that look like they might be enacted. And, unlike in the case of common criminals, MPs may well be receptive to such arguments.

To some extent this receptivity is explained by the fact that the activities in which businesses engage that give rise to social harms that in a different context would be criminal are themselves generally legitimate, an accepted part of industrial activity. While there may be no socially redeeming feature of a robbery, murder or rape, the same cannot be said of running a railroad or an airline. What gives rise to calls for legislation is when the risks associated with corporate activities are ignored, sometimes with disastrous results. Yet it has to be acknowledged that it would be rare to find a company that consciously sets out to cause harm. The challenge lies in drafting a statute a statute that, on the one hand, does not unduly impinge on desirable corporate activities while, on the other, curbs corporate excesses that can be highly dangerous.

This article will explore the politics of the corporate killing debate. It will examine both the tactics of the corporate sector in opposing the proposal for such an offence and the strategies of those who favour this legislation. The effects of catastrophic yet unpredictable events will need to be taken into account. These events often provide the impetus for legislation, as well as forming the backdrop against which legislative battles are fought. In addition to such background events, the prevailing political, social and economic climate, what Hawkins refers to as the ‘surround’,^[9] may affect the decision-making process. Is, for example, the economy buoyant or in a period of recession? Are regulatory bodies held in high esteem or is there a prevailing wind blowing in favour of deregulation? The latter question brings us to the critical role of the government, indisputably the most powerful player in determining the fate of any proposed corporate killing legislation. Is the government trying to walk a tightrope to avoid alienating either the business community or an aroused public; or does it have an agenda of its own? Inevitably, the government’s true position will be a matter of speculation, both because officials are unlikely to admit to socially unacceptable perspectives (for example, no minister is ever going to declare that he or she is prepared to accept a quantifiable number of workplace deaths in exchange for increased economic prosperity); and because the government, even though it may speak with one voice, is composed of numerous individuals, each of whom may be motivated by different policy concerns. Nonetheless, it behoves us to ask what kinds of considerations, both pragmatic and ideological, affect the government’s position.

While the focal point for the discussion will be a proposal for an offence of corporate killing in England and Wales, it should be noted that similar legislation is under review in other countries, as well as in various states of Australia.^[10]

II THE THREAT TO CORPORATE INTERESTS

Before examining the tactics that may be employed by the business community to defeat or weaken legislation which it regards as inimical to its interests, it might prove helpful to examine why the proposal for an offence of corporate killing is widely viewed with alarm.^[11] At first glance, it might seem that such a law would be advantageous to companies. While current heath and safety laws^[12] impose vicarious liability on companies for deaths (or injuries) caused by their employees, the proposed corporate killing legislation would require proof that the company itself had been at fault (guilty of a ‘management failure’ that fell far below what could reasonably have been expected of it). Health and safety offences are also defined in terms of the protection of others (employees and members of the public); no person need actually be killed (or injured) for a health and safety offence to have been committed. In contrast, homicide offences, into which category a corporate killing offence would fall, require that there be a victim who has died. Thus it can be seen that a corporate killing offence would demand more in the way of proof from the prosecution than establishment of a health and safety violation. This presumably would be to a corporate defendant’s advantage. Further, in a health and safety prosecution, there is a reverse burden of proof, with the company, to avoid liability, having to show that it had done all that was ‘reasonably practicable’ to avoid the alleged infraction.^[13] In contrast, in a criminal trial the prosecution would have to establish the corporate defendant’s guilt by proof beyond reasonable doubt; the company need not offer any defence. More rigorous procedural safeguards are also available to accuseds in a criminal trial under both domestic law and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In any event, the maximum penalty following a conviction for corporate killing would be no different than under the current health and safety regime — an unlimited fine and the possibility (though not probability) of a remedial order.

What, then, accounts for the virulent opposition of so large a segment of the corporate community to the proposal for an offence of corporate killing? The answer likely lies in the symbolic value of such a law.^[14] Corporate crimes are qualitatively different from regulatory offences that impose criminal sanctions for their violation.^[15] Regulatory laws imply that the corporate practices at issue are legitimate if only they are kept within acceptable bounds;^[16] criminal laws are a declaration that the conduct in question is unacceptable. And whereas the primary purpose of invoking regulatory law is to remedy deficient workplace conditions, criminal laws are designed to blame, denounce and punish those who have violated its commands. A law of corporate killing would imply that companies, like natural persons, are capable of committing the most heinous of crimes (homicide). The image of the company would be transformed from that of a benign employer which might, on occasion, be the locus of a fatal ‘accident’ to that of a potential killer. The social stigma attached to a criminal conviction for corporate killing could do incalculable damage to the convicted company’s reputation.

The corporate sector is also wary of the precedent at stake. The new wave of proposed corporate killing and industrial manslaughter laws, in England and Australia, takes a more ‘organic’ approach to corporate fault, defining fault in terms of corporate culture,^[17] management failure^[18] and systemic failures.^[19] Companies, even those ambivalent about a law of corporate killing per se, would have to fear that this basis of organisational liability could be extended to other types of corporate activity. Next on the political agenda, for example, might be a crime of corporate battery or the corporate infliction of grievous bodily harm, and while few companies may believe that they expose their employees to the risk of death, they are aware that injuries at work are fairly commonplace. Even financial services firms, whose activities may risk neither death nor injury, would have to worry about enactment of a future offence of, say, grossly negligent financial mismanagement. Companies also are concerned that the very existence of laws which criminalise corporate behaviour may undermine public confidence in business because of their intimation that companies are not to be trusted.

If an offence of corporate killing were to be enacted into law, it is not unrealistic to think that prosecutions would follow,^[20] especially after a widely reported disaster. In the hands of an overly zealous prosecutor, however, marginal cases might also be pressed. Any prosecution would be likely to receive substantial media coverage, for an accusation of homicide against a company will be sufficiently novel to be newsworthy, and this reporting, along with that surrounding any subsequent guilty verdict, could do irreparable damage to the company’s reputation.^[21] Even an eventual acquittal, which may not occur until many months afterwards, might not prevent the financial damage that could be incurred from the publicity that would accompany the initiation of a prosecution for so serious an offence.^[22] Indeed, the financial repercussions could far exceed any fine eventually imposed by a sentencing court — consumers might decide to boycott the offender’s products; and firms which did business with the company, or were contemplating doing business with it, might reconsider for fear of being tainted by association. Such adverse consequences are far less likely to follow from a health and safety violation, if for no other reason that the prosecution would not be likely to attract comparable notoriety.

Businesses also are sensitive to the potential unfairness of a prosecution for corporate killing. From their perspective, workplace deaths are to some extent a matter of chance.^[23] It is not uncommon for all firms in an industry to have similar working practices. Sometimes these practices, viewed retrospectively after a death, may be seen as negligent or even grossly negligent, the fatal results presumably attesting to the company’s fault. Results obviously can colour the perspective of not only the public, but also a judge and jury. In the case of the Herald of Free Enterprise, nearly 200 passengers and crew died when the ferry capsized after sailing with its bow doors open, but the ensuing Department of Transport inquiry into the causes of the capsize discovered a number of other instances where ferries had sailed with open bow doors but without mishap.^[24] Similarly, The Ladbroke Grove railway crash, in which 32 passengers and the driver were killed, was attributed in significant part to a poorly sited signal, but one which had been passed when red on at least eight previous occasions without incident.^[25] And in the case of the Southall Railway crash, caused in part by the absence of a functioning Automatic Warning System that would have alerted the driver when he had passed caution and stop signals, there had been 83 reported instances in the preceding nine month period where the AWS system had similarly been isolated but without fatal consequences.^[26]

If a company is behaving similarly to its competitors, but is unfortunate enough to be involved in an incident involving fatalities, it could find itself being prosecuted for corporate killing while its competitors, engaged in the same practices, would at worst be charged with a health and safety violation. While the tragedies referred to in the preceding paragraph resulted in appalling loss of life, could it really be said that the negligence of the companies in question was any more ‘gross’ than on those identical occasions when no deaths had occurred? Yet in the latter instance the offender would not have to face a corporate killing charge, but at most a charge of violating health and safety law, assuming its dereliction was discovered. There is no avoiding the discovery of a disaster involving mass deaths. Following a conviction for corporate killing, a crippling fine might be imposed because the multiple deaths can be expected to be deemed an aggravating factor in sentencing. Such a fine would place the convicted company at a severe disadvantage compared to those other companies that will receive, in all likelihood, a more modest fine for their health and safety offences.^[27]

III CORPORATE LOBBYING

A Combating The Proposal for an Offence Corporate Killing

Companies can thus be seen to have a vested interest in defeating any proposed corporate killing bill. Further, as Braithwaite observes, this corporate focus will be sharp and concentrated, while the focus of the supporters of the legislation may be more diffused.^[28] The government sponsoring the bill may view it as a relatively minor part of its overall legislative agenda; health, education and immigration bills, for example, may be given priority. If so, the government may not be prepared to expend the political energy and capital that may be needed to overcome the corporate resistance to the legislation. Likewise, members of the general public who have not experienced the effects of a corporate disaster first-hand, while perhaps in principle supportive of a law that would penalise companies which cause death, are unlikely to make the effort to speak to or petition their local MPs. In contrast, the perceived negative effects of a corporate killing bill may place it on the top of the corporate lobbying agenda.

In arguing against an offence of corporate killing, corporate lobbyists may take the ‘high road’ and frame their arguments in terms of theory and ideology.^[29] So, for example, lobbyists may press the neo-classical economic claim that efficiency in business is best achieved through market forces that are permitted to operate without undue government interference. A safe workplace, they will argue, can be secured when workers refuse to accept high-risk jobs unless they receive commensurate compensation, at which point businesses will recognize that it is less costly to eliminate the dangers in the workplace than it is to pay exorbitant salaries. Tied to this theme is the argument that workers should be free to agree to engage in high-risk activities if they receive satisfactory remuneration. Some workers may be willing to risk injury and even death in exchange for high salaries and other benefits, and they should not be legally barred by a ‘nanny state’ from doing so. The flaw in such arguments, as Hopkins points out, is that prospective employees may not be in a position to accurately assess the hazards of the workplace and, especially in a recession, may have little choice but to accept dangerous employment.^[30] Moreover, these arguments do not address the risks to the public, who may have few options, for example, other than train travel if they wish to visit London from a provincial town or an airplane flight if they want to take their holiday abroad. Nonetheless, these arguments may resonate with MPs who are of an economic conservative bent.

These laissez-faire economic arguments may carry less weight with legislators of a more liberal or socialist persuasion. For such MPs, different types of arguments may be required. Now the corporate lobbyist may turn civil libertarian and point out the potential for miscarriages of justice when laws are defined in such vague terms as a ‘management failure’ that falls ‘far below what could be reasonably expected’ of the corporate defendant.^[31] What is meant by ‘management’ and when should the quality of a company’s ‘management’ be deemed so deficient as to be branded a ‘failure’? At what further point does this ‘failure’ fall so ‘far below’ what can be ‘reasonably expected’ of the company that it is in violation of the law? Indeed, how is a company to know what is reasonably expected of it in the first place? Looking to the practices of similarly situated companies may not be sufficient, for they too may be conducting their business in a legally deficient manner.^[32] Further, a thin line often separates what is acceptable from what is unacceptable in business. The point at which, for instance, permissible ‘puffing’ becomes criminal fraud may be virtually impossible to detect in practice. If so, a law of criminal fraud may fail to give fair notice to those subject to it. Similarly, a crime of corporate killing based on a company’s management failure may prove a trap to those whose only ‘offence’ is not to have sufficient time to stay abreast of the latest health and safety developments.

There are also pragmatic arguments that the corporate lobbyist can be expected to advance to all MPs. The amelioration of conditions needed to avoid a potential corporate killing prosecution may be prohibitively expensive when considered in light of the statistical probability of a death and the marginal increase in safety that may be achieved by the corrective steps required. This argument was accepted, for example, by the British government when advanced by the railway industry when it sought to forestall a recommendation of the Hidden Report^[33] (a public inquiry charged with investigating the Clapham Junction Railway crash) that all trains be fitted with Automatic Train Protection (a system that would automatically bring a train to a halt when it passed a ‘stop’ signal); the industry was able to lobby successfully for a less expensive (but less effective) warning system.^[34] On a more pervasive level, corporate lobbyists will make the point that it would be a pyrrhic victory to enact draconian laws establishing corporate crimes if their effect were to induce companies to relocate to more corporate-friendly environs. Such a relocation would cost the state untold millions in corporate taxes, as well as burdening it with having to pay unemployment benefits and welfare to those employees who will have lost their jobs.^[35] Also, in an increasingly global economy, firms which might have been considering placing their headquarters in England might reconsider if a law rendering them more susceptible to manslaughter prosecutions, and on a basis where fault would be easier to establish, were to be enacted.^[36]

Unlike public interest groups and NGOs who may favour passage of a corporate killing bill but who may be handicapped in their lobbying efforts by a lack of funds, money will usually not be a problem for the corporate community once it sets a course to defeat proposed legislation. Prestigious law firms can be hired to marshal the legal arguments and respected economists can be recruited to make the case that a corporate killing offence will stifle innovation and entrepreneurialism. Where necessary, world-renowned scientists may be funded to conduct studies which will support the corporate position.^[37] Companies will have not only the wherewithal but the willingness to contest the issue; as Braithwaite puts it: ‘[companies] may well be prepared to expend every resource available in what [they] regard as a legal fight to the death.’^[38]

Nor is access to MPs likely to prove a problem. Indeed, often the views of the corporate community are actively solicited by the government. With respect to the proposed corporate killing legislation, the Home Office carried out a ‘Regulatory Impact Assessment’ which sought to ascertain how businesses would be affected by the legislation if it were to be enacted.^[39] This was in addition to the opportunities provided by the Home Office’s consultation paper of 2000 to comment on various aspects of the proposal for a corporate killing offence. Over one hundred and fifty responses were received, the majority of which were from the business community. These included written responses from umbrella organisations such as the Confederation of British Industry (‘CBI’), insurance companies and law firms representing corporate clients.

Not all corporate lobbying is carried out by professional lobbyists. Members of the business community often count MPs among their personal friends. Or they may be part of a common social circle.^[40] There may as a result be many opportunities for informal lobbying, albeit under the guise of casual conversations. These will take place outside of the public spotlight, over business lunches, at cocktail and dinner parties, and at other ‘social’ gatherings. Further, MPs may have their own reasons for opposing legislation hostile to corporate interests that may not require any formal mention or acknowledgement. A ‘revolving door’ exists between Parliament and the world of business, whereby ex-MPs will join large firms, corporate executives will enter politics, and legislators will hope to receive lucrative directorships, either during or after their tenure in Parliament.^[41] MPs will perceive that it does not pay to foreclose such opportunities by incurring the displeasure of the corporate community. Even MPs with no aspirations for a seat on a corporate board and no pretensions to a future career in business may be dependent on corporate donors to help finance their election campaigns.

B Rewriting The Terms of a Bill that Threatens Business Interests

Defeating legislation hostile to corporate interests is not always possible. Sometimes, particularly after a well-publicised disastrous event, the momentum behind a bill will be so powerful that its passage becomes a virtual certainty. Such was the case, for example, in respect of the Sarbanes-Oxley Act 2002 in the United States in the wake of the collapse of the Enron Corporation. Even in these circumstances, and certainly when the demand for legislation is less pressing, there may be room for negotiation as to the precise wording of the bill placed before Parliament. The elements needed to be established by the prosecution and the potential defences available to accused companies may well determine the efficacy of the law in practice. Businesses will naturally be seeking the mildest form of criminal law feasible.^[42] Often the seeds of future failed prosecutions can be planted in a bill at the time of its consideration.^[43]

Take a bill to create a crime of corporate battery. While the first priority of the business community may be to defeat the bill, companies would at least want the bill to be written in a way that would minimize the chances of a successful prosecution. In the case of our hypothetical Corporate Battery Act, they would probably prefer that the mens rea of the offence be an ‘intent to injure’ rather than simply a requirement that the company be shown to have acted negligently. The more rigorous the fault element, the more difficult will it be for a prosecutor to establish guilt. Stringent requirements of proof may dissuade a prosecutor from bringing charges in marginal cases, as prosecutorial guidelines indicate that cases should only be taken forward when there is at least a 50 per cent chance of success. Thus, the preferred corporate hierarchy of mens rea would be for laws that required proof of subjective fault over laws requiring only proof of objective fault; and within the various categories of objective fault, the preference would be for laws that required proof of gross negligence over those which could be satisfied by proof of only ordinary negligence. Worst of all would be laws that imposed strict liability.

In respect of an offence of corporate killing, the business community would no doubt have preferred to retain the ‘identification’ test of corporate liability. Under this test a company can only be convicted for a crime that has been committed by a person who can be characterized as part of the company’s ‘directing mind and will’^[44] (usually a director, executive officer or senior manager). The rationale is that these individuals constitute an embodiment of the company for legal purposes. They have the authority to give the company its direction and to make critical policy decisions for the company. They have ultimate responsibility for the implementation of these policies. For all intents and purposes, they are the company. Therefore, the thinking is that it is not inappropriate to attribute their thoughts and actions, including those that are criminal, to their company. This so-called ‘identification’ doctrine was for many years the prevailing test of corporate criminal liability in England and Wales, as well as in Australia, and remains so in England and Wales.

Of course, the corporate lobby was unlikely to be able to persuade Parliament to incorporate the ‘identification’ test of liability into a proposed corporate killing bill. The whole point of offering a ‘management failure’ test of liability was to escape from an ‘identification’ test which had proved ineffective and unworkable in practice. The ‘identification’ doctrine had long been criticised for its inability to deal with corporate crime in large companies, where the decision-making power is diffused and not easily traceable to a single individual.^[45] Empirically, the ‘identification’ test had led to few convictions, and those which had been secured were of small firms, where an executive officer took a hands-on approach to the running of the business or where there was a transparent link between the decisions of the officer and the harm-causing acts.^[46] Large companies, in contrast, had been able to avoid liability by structuring their internal lines of communication so that knowledge of the criminogenic aspects of the company’s operation did not reach those at the top or by allocating the responsibility for those phases of the company’s operation most likely to lead to criminal violations to persons who could not be characterised as part of the company’s ‘directing mind’.^[47]

In England, the deficiencies of the ‘identification’ doctrine were exposed in the criminal prosecution of P&O Ferries for manslaughter following the capsize of the Herald of Free Enterprise. The initial question facing the trial judge, Turner J, was whether a company could even be charged with manslaughter, a crime which had for the most part been associated with deaths caused by natural persons. After a thorough review of both English law and that of other common law jurisdictions, the judge concluded that ‘where a company, through the controlling mind of one of its agents, does an act which fulfils the prerequisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter.’^[48] While this ruling constituted a welcome elucidation of the law, Turner J’s qualification that a company could only be found guilty if a person ‘identified’ with it had committed the offence to be charged to the company drained the decision of its practical significance. This became apparent when the manslaughter charges against P&O were subsequently dismissed because there was not sufficient evidence that any corporate officer had behaved in a legally reckless manner, as then required by the law of involuntary manslaughter. Turner J reached this conclusion on the questionable basis that the risk of deaths resulting from a ferry’s sailing with its bow doors open would not have been ‘obvious’ to a reasonably prudent person in the position of the defendant’s executive officers.^[49]

It was the outcry that followed the dismissal of the case against P&O that induced the Law Commission to re-examine the law of corporate manslaughter as part of its review of the law of involuntary manslaughter generally. The Commission, as already noted, after a lengthy consultation exercise, recommended in 1996 a new ‘stand-alone’ offence of ‘corporate killing,’ under which a company could be convicted of the offence when there had been a ‘management failure’ by the company that fell ‘far below what could reasonably have been expected of it in the circumstances’ which was ‘one of the causes’ of a work-related death.^[50] As noted previously, the government endorsed this offence in its 2000 consultation paper in terms that, for the most part, tracked those of the Law Commission.^[51]

It may be that, even though it would have preferred retention of the ‘identification’ test of liability, the corporate community, recognizing that such an option was not realistic, was not displeased by the substituted test of ‘management failure’ as the measure of corporate fault. It seems likely that this phrase is destined be a fertile ground for litigation.^[52] While the government’s consultation paper specifically states that this term is meant to refer to ‘the way in which [the company’s] activities are managed or organised’,^[53] some commentators, and perhaps future judges, may take the view that the Crown will have to prove that the company’s failure is attributable to persons who can be characterized as part of its ‘management’ team.^[54] If this interpretation were to be accepted, the courts might find determining who constitutes ‘management’ as problematic as they currently find the determination of who constitutes the company’s ‘directing mind and will.’ Large companies in particular, with a complex mix of both horizontal and vertical management structures, may be able to exploit the ambiguity of the terminology.^[55] Also, the lack of a bright line indicating the point at which poor management becomes a ‘failure’ and the further point at which this ‘failure’ falls so ‘far below what could reasonably be expected’ of the company so as satisfy the fault element of the offence will leave ample room for jury arguments at trial. In the event of an adverse verdict, large companies will likely have the resources, as well as the resolve, to take the issue of the vagueness of the law to higher courts, including the European Court of Human Rights. Awaiting a definitive ruling on the meaning of ‘management failure’ may put a corporate killing law under a cloud of uncertainty while tying up the government in protracted and expensive litigation.

Another feature of the government’s 2000 consultation paper that upset the corporate community was the proposal, albeit tentatively mooted, that directors might be held criminally liable for ‘contributing’ or ‘substantially contributing’ to their company’s corporate killing offence.^[56] It has been forcefully argued that the most effective way to cause companies to take safety issues seriously is to make directors and corporate executives personally liable for any resultant offences.^[57] Directors and corporate executives, however, were appalled that they should be regarded as no better than common criminals, when they certainly did not see themselves as such. Unlike petty thieves and burglars, who are motivated by self-seeking goals, their actions (or so they rationalised) were done for the benefit of their company.^[58] Nor did their self-image correspond to their image of the criminal, which consisted of muggers, robbers, burglars, rapists, murderers and the like. Of course, their image of crime is the traditional one of ‘street crime’. Nonetheless, they did not see how their supposed infractions fitted into this picture, and were offended to be placed in the same category as these more disreputable criminal classes.

Nor did business leaders think it just that they should have to face the possibility of criminal sanctions for high-risk but not unreasonable business decisions that in retrospect turned out poorly. The riposte that under the legislation a reasonable business decision would not lead to a conviction was not going to allay these fears, for corporate executives could appreciate that the question of ‘reasonableness’ would not be settled until after they had suffered the indignity of being arrested, charged and brought to trial, with all of the attendant adverse publicity. Moreover, it was not difficult for them to foresee that, in the wake of a disaster, there would be a powerful demand from the families of victims, and perhaps the general public, for someone to blame for what might simply have been an unfortunate but unavoidable accident. They could also envisage that the government could find itself under virtually irresistible pressure to prosecute; and, already excoriated for their ‘fat-cat salaries, ‘golden parachutes’, and ‘rewards for failure’, they could see themselves as the readily available, unsympathetic sacrificial offering.

To sum up, when enactment of a bill that is hostile to corporate interests appears unavoidable, the corporate sector will try to remove or rewrite its most objectionable features. In respect of the proposal for an offence of corporate killing, much of the business community’s energies were directed to eliminating from the bill any possibility of personal liability of directors. Recent statements by government officials, most notably those of the Home Secretary, indicate that these efforts have been successful. While the general fate of the legislation may remain in limbo, the Home Office has now made clear that corporate directors and officers will not be targeted by any bill that might be introduced.^[59]

C Locating The Seat of Enforcement

After the wording of an act criminalising corporate misconduct has been agreed upon, the attention of the corporate sector may turn to the question of who will be responsible for its enforcement. The preference will be for this responsibility to be entrusted to a regulatory agency rather than to the police. Historically, the effectiveness of regulatory agencies in enforcing what might have started out as promising legislation has been less than impressive.^[60]

The reasons for this ineffectiveness are several. Many commentators point to the preference of regulators for compliance-based strategies (that is, strategies based on advice and persuasion rather than prosecution) and question their effectiveness.^[61] Hawkins points out that regulatory agencies are subject to the direction of the government and its ministers.^[62] Where a government has embraced a deregulatory philosophy, as apparently has the present Labour government in the United Kingdom,^[63] regulatory agencies find themselves subject to formal directives, informal advice and pressure from government officials to refrain from proactive enforcement of regulatory laws.^[64] Prosecution becomes even more of a last resort than it may already be. The Centre for Corporate Accountability has criticised the government for its recent decisions not to impose legal safety duties upon company directors,^[65] and to rely on voluntary guidance, rather than on inspections and prosecutions, to secure compliance with health and safety laws.^[66] These initiatives can be seen as part of the government’s continuing commitment to deregulation.

The effectiveness of a regulatory agency is to a large extent dependent on its budget.^[67]

The budget is set by the government. If an agency is perceived as being overly oppressive towards corporate interests, the business sector can lobby the government to reduce the funds allocated to the agency. The government is more likely to be receptive to such an appeal than if a comparable plea were to be made in respect to the funding of the police or prosecuting authorities. And, unlike the decision of whether or not to enact criminal legislation in the initial instance, budgetary decisions rarely attract public or media attention. MPs who might be reluctant to oppose populist criminal legislation for fear that it would lose them votes will find more defensible the advocating of cost-cutting in government in order to save taxpayer money.

Budgetary constraints can frustrate an agency’s efforts to fulfill its legislative remit. In the case of the Health and Safety Executive, it already finds it difficult to inspect business premises on a regular basis, admitting to be able to inspect any given premise roughly once every twenty years.^[68] It is also able to investigate only a small fraction of serious work-related injuries. Its ability to take on the added responsibility of investigating and prosecuting instances of corporate killing must therefore be doubted unless it were to receive a significant infusion of new funds, which, as noted, would lie within the province of the government. In practice, even in cases involving death or serious injury, where a prosecution of a company might seem clearly warranted, a health and safety inspectorate may agree to forgo the prosecution if the company will agree to correct the conditions that gave rise to the offence. While an agency may seek to justify a ‘compliance’ strategy by emphasising the paramount importance of rectifying dangerous conditions in the workplace, the reality is that most agencies simply cannot afford to go head-to-head in court with economically powerful companies that can afford to hire the best counsel, fly in world famous experts to testify, and generally drag out the proceedings until the agency is exhausted of funds or there has been a change in its personnel. Over time, and perhaps with a more pro-business-orientated government having come to power, inspectors who are sympathetic to the concerns of businesses may replace those who had been inclined to take a more robust approach to enforcement.^[69]

Interestingly, the corporate sector did not even have to make the running on the question of who should be responsible for enforcing an offence of corporate killing, as the government in its 2000 consultation paper recommended that the responsibility be allotted to the Health and Safety Executive rather than to the police.^[70] Whether the government had been lobbied by the business community in advance of the publication of its consultation document, or whether it felt that it would be able to retain greater control over the HSE than over the police because of its control over its budget and policies, and that it would be important to be able to retain this control, is impossible to know. It is true, as the Home Office argued, that HSE inspectors have more experience in investigating workplace deaths, but their experience in gathering the evidence needed for a criminal prosecution may pale in comparison to that of the police. Historically, regulatory inspectors have strived to maintain good working relationships with corporate officials, but such relationships may be counterproductive to the obtainment of incriminating admissions and confessions. Investigations by the HSE are likely to be less rigorous than those of the police, with successful fewer prosecutions being the inevitable by-product.^[71]

The assignment to the HSE of the primary responsibility for the investigation of offences of corporate killing could also have symbolic significance. It might well suggest that corporate killing is just a health and safety offence by another name.^[72] The offence would thus be devalued, the implication being that workplace deaths were not of the same order of seriousness as those cases of homicide that are investigated by the police.^[73]

D Obtaining Procedural Advantages that will Lessen The Chance of a Successful Prosecution

An often overlooked means whereby corporate lobbyists may be able to undermine the potential effectiveness of proposed criminal legislation is by addressing themselves to the rules, regulations and procedures that will govern investigations and prosecutions. Assuming, for instance, that the government has been persuaded to entrust responsibility for enforcement of a law of corporate killing to a regulatory agency, the lobbyists might then argue that the agency should have to give advance notice to a target company before entering its premises. If this ‘eminently fair’ requirement of advance notice were to be accepted, the effect would be to give companies time to correct any illegal conditions relating to their premises or work practices before the inspectors arrived. Worse, it would provide companies who were so inclined the opportunity to shred incriminating documents and destroy evidence. Despite these drawbacks, inspectors usually do give advanced notice of their visit as a matter of practice.

Another important procedural issue worth fighting over for companies is the question of whether corporate executives will be able to invoke the same ‘right of silence’ or ‘privilege against self-incrimination’ on behalf of their companies that is accorded individual suspects facing interrogation. If it were to be accorded, then the chances of garnering incriminating evidence against the target company would be further reduced. If the test of corporate criminality is to turn on ‘management failure’, then the testimony of those responsible for managerial decisions is likely to prove vital, regardless of how the term ‘management failure’ is construed. This would be particularly so if incriminating corporate records could not be located, or went missing following advance notice of a search.

The burden of proof is another area where the corporate lobbyist will seek to protect the position of companies by preserving the existing law. The traditional burden is on the prosecution to establish guilt by proof beyond reasonable doubt. It could be argued, however, that the situation of a company is distinguishable from that of a natural person on trial. A company does not face the same loss of liberty as does the natural person. If a company’s punishment is to be a fine, this is more akin to damages in a civil case (although the fine goes to the state rather than to the injured plaintiff). The argument could accordingly be made that the civil test of liability should also apply in this context.^[74] The merits of such a proposal are beyond the scope of this discussion but the point is that these are the type of low-visibility issues that corporate lobbyists appreciate can make the critical difference between a successful and an unsuccessful prosecution. Being less visible, they are also the types of issues that the government and Parliament may be more receptive to conceding then the basic question of criminalisation.

A final potentially significant procedural issue relates to private prosecutions, which hold the potential to circumvent decisions by the CPS not to proceed in a given case. Usually, the consent of a government official, such as the Director of Public Prosecutions, is required before a private prosecution can be brought. Interestingly, however, the government took the position in its consultation paper that there should be no requirement of advance consent to the initiation of a private prosecution for corporate killing.^[75] Whether an individual (or organisation?) bringing a private prosecution will be able to match the resources of a wealthy corporate defendant in resisting the charge is another matter altogether.

E Avoiding Unpalatable Sanctions

Once the terms of a corporate killing law and the responsibility for its enforcement are settled, the focus of the corporate community will shift to the question of sanctions. This may be as, if not more, important to companies than the law itself. So long as corporate crimes remain profitable (in the sense that the benefits from the wrongdoing outweigh the penalties from being convicted for a violation), a law of corporate killing is likely to exert a weak deterrent effect at best.

The traditional punishment that has been imposed on companies convicted of a criminal offence in England and Wales has been a fine. If the case is brought in a magistrates’ court the fine will be limited by the sentencing authority of the court. The maximum fine that can presently be imposed by a magistrates’ court is only £20,000, an amount not likely to make a significant impact on the financial ledger of a large or multinational corporation. However, a corporate killing offence would be more likely to be prosecuted in Crown Court, where an unlimited fine can be imposed. This is the same maximum penalty as for a health and safety offence prosecuted in Crown Court. Of course, the fine that a Crown Court would impose in practice following a conviction for corporate killing might be greater than that which the Court would impose for a health and safety violation involving a death, but this could not be known until a law of corporate killing was in force.

In any event, fines are problematic. Often they are passed on to consumers of the offender’s products in the form of a price increase. Thus, it is the company’s innocent customers and not the guilty company which bears the brunt of the fine. As the rationale for fines is that companies whose primary concern is profit and loss will not commit a crime if it is economically disadvantageous to do so, this rationale is subverted if the company is able to pass on the costs of its wrongdoing. Even where a fine cannot be passed on to consumers, either because the offender is in a highly competitive market where raising prices will result in too great a loss of customers, or because the trial court specifically imposes an order prohibiting the company from raising the prices of its products beyond what is commercially justified, the fine still may have a deleterious spill-over effect. Workers may be made redundant in order to generate the savings to pay off the fine. If a truly onerous fine were to be imposed (in keeping with the seriousness of a corporate killing offence), the offender might be forced into bankruptcy, with innocent employees again losing their jobs.

It was noted previously that the corporate community appears not to have had to lobby the government on the question of who should be responsible for enforcing a new offence of corporate killing, as the government was already prepared to cede this responsibility to the Health and Safety Executive. Similarly, in reference to sanctions, the consultation paper spoke only of fines and remedial orders. Whether this conservatism was due to pre-emptive corporate lobbying, or whether the government saw it in its own interest not to press for a more punitive regime, cannot be known. Numerous commentators, however, had drawn attention to the limitations of fines and had argued the case for more innovative sanctions,^[76] including community service,^[77] publicity orders (court orders requiring the company to make known its offence either to the general public or to a more targeted audience such as the company’s shareholders),^[78] orders suspending or revoking the license of a convicted company to engage in a particular business or to bid on government contracts,^[79] orders requiring the offender to remedy the harm caused,^[80] and the death penalty equivalent of corporate dissolution.

In 1990 the Council of Europe proposed an escalating and comprehensive list of possible sanctions:

• warning, reprimand, recognisance;

• a decision declaratory of responsibility, but no sanction;

• fine or other pecuniary sanction;

• confiscation of property which was used in the commission of the offence or represents the gains derived from the illegal activity;

• prohibition on certain activities, in particular exclusion from doing business with public authorities;

• exclusion from fiscal advantages and subsidies;

• prohibition upon advertising goods or services;

• annulment of licenses;

• removal of managers;

• appointment of a provisional caretaker management by the judicial authority;

• closure of the enterprise;

• winding-up of the enterprise;

• compensation and/or restitution to the victim;

• restoration of the former state; and

• publication of the decision imposing a sanction or measure.^[81]

If an offence of corporate killing is to be taken more seriously than a health and safety violation, it is arguable that more severe sanctions than those imposed in health and safety cases are required. For the two offences to have identical penalties carries the implication that a corporate killing is a species of health and safety violation.^[82] Why the government chose not to propose more innovative sanctions in its consultation paper is unclear. What is clear is that, given the Council of Europe’s recommendations, along with the considerable academic scholarship on the issue of corporate sanctions, those involved in the formulation and drafting of the government’s 2000 consultation paper were most likely not unaware of sanctions other than fines.

IV THE FORCES IN FAVOUR OF A CORPORATE KILLING BILL

Having examined the many and varied ways that the corporate sector may try to defeat or weaken a proposed corporate killing bill, it behoves us to ask whether there are any groups which will lobby for its passage. There indeed is such a counterpoint and it consists of a disparate and loose-knit coalition of individuals and organisations composed of victims, their friends and families; public interest groups and non-governmental organisations (NGOs); unions and other workers representatives; academics, the media and, in some instances, the general public. These supporters of corporate killing legislation have the in-built advantage of occupying the moral high ground — it is hard to argue that profits are more important than lives. Nevertheless, they are unlikely to be able to match the financial resources that the corporate sector will have available to spend on lobbying or have comparable access to those in a position to influence the course of legislation.^[83] The challenge is daunting.

A Victims’ Organisations

One of the most powerful forces in England supporting the enactment of an offence of corporate killing has proved to be the families of the victims of a disaster. Following a disaster, it is not uncommon for the bereaved to come together for mutual support. From such informal contacts have emerged more formal organisations.^[84] While disquiet over corporate safety may have long been present in society, a disaster can provide the focal point around which concerned citizens can organise and give vent to ‘resonances already present in social discourse.’^[85] Braithwaite referred to the ‘diffuseness’ of the public’s interest in corporate matters.^[86] If true, a disaster provides a lightning rod for dissent and to eliminate any such diffuseness.

At one time families of victims were prepared to accept that the work-related death of a loved one was an unfortunate ‘accident’, or due to bad luck or an ‘act of God’. No longer is this the case. Increasingly, families insist on a full account of the company’s role in the fatal incident.^[87] The government too may be targeted for insufficiently carrying out its supervisory responsibilities relating to the industry. Victims’ organisations will typically have one or more of three aims: to force a prosecution of those who are believed to be responsible for the deaths in question; to press for a public inquiry to discover the causes of a disaster and to make recommendations so that it will not be repeated; and to campaign for changes in the law where it is deemed to be inadequate. It is in respect of the latter goal that victims’ organisations have lobbied for enactment of an offence of corporate killing.

Members of victims’ organisations seek to keep issues of corporate accountability in the public eye. Although few are professional speakers, the bereaved are able to communicate their anguish in a way that cannot be duplicated by those who have not suffered their loss. Their insights are borne of first-hand experience, their grief is genuine, and their pleas are heartfelt and moving. They believe that they have been let down by the law and by the criminal justice system, and their strength of feeling on this issue is deep and passionate. Nor are they reluctant to express their views. What is perhaps most striking is their unwavering commitment to their cause. Whereas others (eg, academics, the media and the general public) may become distracted by the latest political controversy, members of victims’ organisations have retained a singular focus. In England and Wales, their campaign for a law of corporate killing has been sustained, intense and unrelenting. To the extent that the issue remains on the political agenda, it is in large measure attributable to their efforts.

Victims’ organisations are unlikely to have as ready access to MPs as the corporate community. Unlike the views of the latter, the opinions of the families of victims may not be actively sought by the government. Of course, a victims’ organisation is free to respond to a consultation paper, such as the one which included the proposal for an offence of corporate killing. However, in contrast to the responses of the corporate community, which tended to be carefully prepared, analytical in content and polished in their writing (a reflection of the fact that for the most part they were prepared by lawyers and other professionals), the responses of victims’ organisations and their members were frequently more rough and emotive. Whether or not responses couched in this style appealed to the civil servants and/or government officials who reviewed them is debatable. In any event, the focus of these responses was on the pressing need for an offence of corporate killing. The respondents were less sensitive to, and therefore less likely to address, the minutiae of any proposed offence.^[88] But, as has been argued, the scope and wording of an Act, its test of fault, the allocation of enforcement responsibilities, the sanctions attached to a conviction, and defences that may be built into an Act may have significant impact on the Act’s efficacy in practice. The corporate lobby may have been more attuned to the importance of such details; victims’ organisations were focused on simply adding an offence of corporate killing to the statute books.

Often victims’ organisations will seek to present their grievances in a public forum to which MPs usually will be invited to attend. On the occasions at which the author has been present, few MPs have chosen to accept this invitation, and, to the author’s knowledge, no government minister has ever been present. Thus, if victims’ organisations are to make their views known to MPs, they may have to be more creative and resourceful in their methods. Letter-writing campaigns to local MPs have been tried with mixed success. Public rallies and demonstrations are another possibility, but these have the potential to alienate MPs, especially if they should turn violent. Nonetheless, a public protest will probably attract the attention of the media, and be widely reported. In the absence of a demonstration, the media may not be interested in the merits of a corporate killing bill, particularly after the events that gave rise to the bill have faded into history.

B Public Interest Groups, NGOs and Academics

Victims’ organisations can find support from many sources, including academics. Academic scholarship is generally meticulously researched and sophisticated in its analysis. Books, articles and reports possess an ‘objective’ legitimacy^[89] that nicely complements the anecdotal but tragic tales of the bereaved. Carefully reasoned arguments for reform of the law can increasingly be found in publications by distinguished scholars. The Australians John Braithwaite and Brent Fisse, individually, jointly and with collaborators, have been among the most prolific of these scholars and have written on many different aspects of corporate crime.^[90] Academics in other countries are now also contributing to the growing literature on the topic.^[91]

It is not uncommon to find academics, although agreeing on goals, disagreeing on the best means of achieving their common end.^[92] To an outsider, academics often seem to be splitting hairs rather than concentrating on the target. Moreover, academic writing is not of one mind. One should not assume that academics are invariably supportive of greater corporate control. There are many free market economists,^[93] philosophers^[94] and legal academics^[95] who have argued against corporate criminal liability. In some instances pro-business research has been funded or sponsored by individual companies or by an industry.^[96] Thus, academic writings are a two-edged sword, available to both proponents and opponents of corporate killing legislation.

For the most part, academics tend not to become involved in lobbying for legal reform,^[97] preferring to let their publications speak for themselves. Unfortunately, these publications typically appear in academic journals and books written for, and read by, other academics. Consequently, they may not come to the attention of victims’ organisations or, for that matter, legislators. Even if they do, academic writings often have an unfortunate tendency to be laced with jargon and technical terms which may not be easy for persons unfamiliar with the literature to comprehend. Another difficulty is one of timing — empirical academic scholarship may be based on case studies where the research will have taken years to complete, and more years still before it is written up and published, with the result that what might have been a potentially influential piece of scholarship does not appear in print until well after a legislative battle has been concluded. For all of the above reasons, the practical impact of academics on a particular piece of legislation, such as the corporate killing bill, may not be that significant, at least not in the short term. If they are to have an impact, it is more likely to be as a part of the longer term struggle to change society’s attitudes towards the nature of corporate social responsibility and the role of companies in workplace deaths.^[98]

Public interest groups and NGOs, on the other hand, are more prepared to become involved in current controversies. These organisations have greater experience operating in the political arena, and they are skilled at mobilising their members to exert pressure on the government. . Their leaders are politically astute. However, whether or not an organisation plays an active role in the campaign for a law of corporate killing may be determined by factors other than whether the organisation is supportive of the legislation in principle. An organisation’s remit may restrict the scope of its activities,^[99] or limited finances may cause it to be selective in its undertakings. Sometimes an NGO may prefer to try to influence corporate behaviour more directly through a ‘name and shame’ campaign or a boycott of the products of a company whose practices they find objectionable. Such campaigns and boycotts may have little effect on pending legislation, other than that their threat may make companies wary of publicly opposing a corporate killing bill. Unfortunately, this may simply drive the corporate sector to more covert, less visible, and more behind-the-scenes lobbying of MPs.

Often the demands of public interest groups and NGOs seem to far exceed what would be regarded as politically feasible or, indeed, what the organisation might realistically hope to achieve. However, as Snider points out, this overreaching may be tactically sound: often the government will respond with legislation, albeit weaker than that demanded, in order to show that it is not totally insensitive to the issues being raised.^[100] This legislation will then be on the books (although perhaps weakly enforced) and available when a scandal or crisis demands its invocation. Moreover, the legislation will set the floor for future campaigns designed to further advance the organisation’s goals.

C Unions and Workers’ Representatives

Organised labour has traditionally been the main counterpoint to the corporate sector, and one might have expected trade unions to be strong supporters of a corporate killing bill. Safety is an obvious concern to their members, especially those engaged in the construction, manufacturing, transport and extraction industries, and an offence of corporate killing would seem to be a natural lightning rod for this concern.

An initial point worth noting is that when unions contemplate corporate killing legislation, they may have in mind a different problem than that which engages the families of victims and the general public. The latter is aroused by well-publicised disasters involving mass loss of life. The focus of victims’ families is on the particular tragedy that gave rise to their loss, again often a catastrophic event. The plight of workers may be less prominent on their radar screen. In contrast, the primary concern of unions relates to the safety of their members and on day-to-day conditions in the workplace, rather than on calamitous but one-off occurrences. Their principal goal may not be law reform as much as their own greater empowerment. They want the right to be consulted by employers on safety and other issues and to have a say in respect of policies that affect their members. For the unions, the enactment of an offence of corporate killing may be more of a luxury than a necessity.

Union support for corporate killing legislation often seems to be fuelled by the belief that corporate directors will be personally prosecuted. Many union members simply want to see their bosses in the dock. Although, as previously noted, the 2000 consultation paper would have allowed for this possibility, more recent pronouncements of the Home Office have made it clear that individual directors will not be targeted by any bill the government eventually brings forth. This change in the scope of a bill may have dampened the enthusiasm of some union officials for corporate killing legislation.

Despite the active role that unions play in Labour Party politics, despite their significant financial contributions to the Labour Party, and despite the many former union members who are now Labour MPs, including some highly placed cabinet members, unions do not appear to have been able to persuade a minister or prominent MP to take the lead oar in steering a corporate killing bill through Parliament. Yet a spokesperson of that status may be needed to secure the bill’s passage. The inability of unions to find this legislative champion appears strange, but then so does the fact that union leaders were not initially in the forefront of those supporting this legislation.^[101] If these points are valid (and they would undoubtedly be disputed by union leaders), what might account for this relative indifference?

Perhaps the unions believe that there are more pressing matters to be addressed, such as a greater role for worker representatives in matters of corporate governance. Perhaps they are more concerned with the wages, hours and terms of employment of their members. Perhaps they are satisfied with the progress on health and safety issues that has been achieved since enactment of the Health and Safety at Work etc Act 1974, as well as the increasing availability of workers’ compensation, and for these reasons no longer accord health and safety as high a priority as they did formerly. Or, just perhaps, they, like the government, can envisage that if a corporate killing offence were to be enacted, and if the law were to be rigorously enforced, and if judges were to impose sentences commensurate with the seriousness of such an offence, then many companies currently based in England might think about relocating in countries where the law was not so draconian. Similarly, companies contemplating establishing their headquarters or a subsidiary in England might decide that it made better sense to situate themselves in a country that did not make them potentially criminally liable for deaths that happened to occur in their workplace. To the unions, decisions to relocate or not to establish a plant in England translate into lost jobs. Although the arguments may be speculative, the fears are real. The closing of plants and the absence of new investment are of more practical concern to unions than what many union officials may have regarded (perhaps correctly) as largely symbolic legislation. Accordingly, the position of the unions on a law of corporate killing may have been nominally supportive in public but more restrained in private.

V THE ROLE OF EVENTS

Perhaps the most important factor determining whether corporate crime legislation is enacted is something over which neither the pro nor anti forces have any control. The X factor, whose importance should never be underestimated, is events.^[102] A corporate disaster, entailing significant loss of life, makes real what was previously only an abstract possibility,^[103] bringing the potentially catastrophic consequences of corporate malpractice to the attention of the media, the public, MPs and the government. A disaster can elevate a problem to a crisis, and produce reactive legislation.^[104]

Although a disaster may be unpredictable, the response to it tends to follow a pattern. The injuries and deaths produced by the disaster will generate public anger, angst and outrage. Frequently these reactions will be stoked by sensationalist media coverage. If an investigation hasn’t already occurred, the pressure for one will be intense. The investigation may be conducted by a regulatory agency, but more likely the demand will be for a prosecution or, increasingly, a public inquiry. The government may well prefer the latter as it forestalls the need for immediate action. Part of the inquiry’s remit will be to make recommendations for law reform as needed. Such recommendations may or may not be acted upon by the government, depending on a number of factors: the extent to which the government concurs with the inquiry’s recommendations, whether the government feels itself under continued pressure to act, and the success of any pre-emptive corporate lobbying which has been conducted in the interim. If the government has been persuaded by corporate arguments, or if pressure for reform has abated, or if the government is not particularly enthusiastic about the inquiry’s recommendations or has other, more pressing items on its legislative agenda, the recommendations may be put on a shelf where they can be dusted off in the event of a future similar disaster. If the pressure for reform remains strong, however, and if legislative action appears unavoidable, a limited law that is palatable to the corporate community may be enacted.^[105]

The above scenario can be discerned with respect to the torturous path of corporate killing legislation in the United Kingdom. Public indignation was initially fuelled by a series of disastrous ‘accidents’ in the latter half of the 1980s: the Clapham Rail train crash, the King’s Cross fire, the Piper Alpha explosion and, most prominently, the capsize of the Herald of Free Enterprise. Public or legislatively mandated inquiries followed each of these tragedies. Despite the identification in the subsequent report of the contributing effects of corporate negligence (or worse) to the deaths, in respect of none of these incidents was a successful prosecution brought against the putative corporate offender. Indeed, only in the case of the Herald was a prosecution even assayed, and that was unsuccessful for reasons discussed previously. These disasters, punctuated by the failed prosecution of P&O, induced the Law Commission in the early 1990s to examine the difficulties in holding companies liable for manslaughter and, in 1996, to propose a free-standing crime of corporate killing. By the time of the Commission’s proposals, however, many years had passed since the events which had triggered them. The public’s anger had cooled and its fears had lessened. Because a corporate killing bill was not high on the government’s legislative agenda, perhaps in part because of corporate lobbying in the interim, no action was taken on the Law Commission’s recommendations.

Then, four years later, a series of rail crashes reignited the public’s anxieties about the lax attitude of the transportation industry towards safety. The government’s 2000 consultation paper, which revived the Law Commission’s 1996 proposal for a crime of corporate killing, was published after the collapse of the manslaughter prosecution against Great Western Railway for seven deaths that resulted from a crash at Southall. The prosecution broke down because of the inability of the CPS to prove that a person who was ‘identified’ with the company had been guilty of manslaughter. It was not enough to establish, as the CPS had attempted to do, that the company as a whole might have been grossly negligent. Following dismissal of the charges, a public inquiry into the crash was convened. However, even before it could issue its final report, another fatal rail crash took place outside of Paddington Station, killing 31 passengers and the driver. It was at this point that the government rushed into print its consultation paper. As has already been observed, however, four years have passed since the end of that consultation exercise and no bill has as yet been introduced. This may be attributable to the fact that the outrage of the public and the media has calmed or has been displaced by concern over other events (eg, the Iraq war), and no new disaster directly attributable to corporate fault has occurred. It would be unfortunate indeed if another disaster was needed to advance the passage of this legislation. In the meanwhile, however, any proposed legislation that might ultimately be brought forth has already been denuded of the feature found most objectionable by the corporate community, that of personal director liability.

The United Kingdom is not alone in its experience. Similar sequences (with minor but largely inconsequential variations) can be seen in other jurisdictions: a catastrophic event is followed by a public outcry often fuelled by media reporting, a formal inquiry is convened or there is a prosecution which fails (or in some cases succeeds but with an inadequate penalty being imposed), the government endorses the recommendations of the inquiry or denounces the failed prosecution but, ultimately, no new (or new but weak) legislation is enacted. In Australia it was the explosion at the Esso Longford gas plant in Victoria in 1998 which triggered the sequence. The explosion resulted in the deaths of two workers and cut gas supplies to Victoria for nearly a fortnight. Next came a public inquiry by a Royal Commission, headed by a distinguished former high court judge. Its report strongly criticised Esso’s failure to train its employees and to equip them with ‘appropriate knowledge to deal with the events that had occurred.’^[106] The fact that Esso had attempted to blame junior staff for the explosion was poorly received. Although the company was subsequently convicted of eleven breaches of the Occupational Health and Safety Act 1985 (Vic), it was fined only two million (Australian) dollars, which was seen as a paltry amount given the corporation’s vast resources. The resultant dissatisfaction led to the introduction in Victoria of the Crimes (Workplace Deaths and Serious Injuries) Bill.^[107] This Bill in effect would have created new offences of corporate manslaughter^[108] and negligently causing serious injury by a body corporate.^[109] It would have allowed for senior corporate officers to be held personally liable where the officer was ‘organisationally responsible’ for the sphere of the company’s operation at issue and had materially and knowingly contributed to the commission of the offence. However, the Bill was rejected in the Upper House in 2002, following a sustained lobbying campaign by the Australian Industry Group and the Victorian Employers Chamber of Commerce.^[110] There are currently no plans to reintroduce it.

Despite the power of events, it would obviously be poor strategy to await their occurrence before pressing the case for law reform. Events clearly cannot be predicted with any degree of advance accuracy. Nor can one always count on the public’s outrage, or the media’s willingness to become actively involved in a campaign for reform. Most crucially, however, it is perverse not to address dangerous conditions before, rather than after, they produce calamitous results and irreparable harm. At best, disasters should be viewed as examples that can be used to buttress the case for reform.

A Moral Panics and The Media

The media plays a critical role in sensitising the public to issues of corporate responsibility following a disaster. The public is dependent on the press, television, radio, and increasingly the internet, for information. Few citizens will be physically present at the scene of a disaster or know someone who was present. What they learn about the event, they learn not from eye witnesses but from the media. And how the media choose to portray an event will help to shape the public’s reaction to it.

Sensationalist coverage by the media is capable of evoking a strong reaction and in extreme instances can induce mass hysteria. The effect of moral panics has been well-documented in the literature.^[111] Although the media can draw attention to events that might otherwise have escaped the public’s notice (eg, through investigative journalism), it is probable that a fatal air or rail crash, a ferry capsize or an explosion is destined to be widely reported. Nevertheless, through editorials expressing the leader writer’s moral indignation, and through ‘human interest’ stories casting the plight of victims and their families in a sympathetic light, the media can help to shape the public’s response to the incident. Emotive rhetoric, with the company being portrayed as the villain, can amplify the public’s sense of outrage beyond the natural empathy that it will feel for the victims. The intimation is that the company has done something blameworthy for which it should be held legally accountable and punished. Even good faith corporate efforts to provide compensation to the victims may be characterised by the media as nothing more than a public relations ploy.

The media can also plant the idea that ‘something needs to be done’ to rein in irresponsible corporations. An aroused public may join in the demand for action by the government, legislators, the judiciary, the police, inspectorates and others in a position to effect change. Demonstrations may be held, with the company in question typically being accused of the ‘crime’ of putting profits ahead of safety. Public interest organisations may be formed to campaign for a change in the law, or the cause of reform may be taken up by organisations already in existence. Legislators may find it difficult to resist the pressure generated, at least until the furore over the disaster has abated.

Fortunately for the corporate sector, moral panics rarely last. Outrage is difficult to sustain over a prolonged period, as the public rapidly tires of stories on the same topic or theme. In the absence of new developments, ‘issue fatigue’ can set in. Unlike the friends and families of victims, the loss of whose loved ones will never be far removed from their consciousness, the average member of the public becomes easily bored by ‘yesterday’s news’. Media interest itself is transient, as new crises and tragedies compete for attention. As a result, the concern over corporate irresponsibility may cease to engage the public to the same extent as it did immediately after the disaster, and the pressure for reform will gradually subside in the absence of some new event that will rekindle the public’s and media’s interest.

B The Voice of The People

The power of events lies in their ability to galvanise public opinion in a way that arid legal and academic arguments cannot. Members of the general public will identify with the victims of a ship, rail or airplane disaster because they too use these modes of transportation.^[112] The disaster brings home to them the extent to which their well-being lies in the hands of what may be potentially irresponsible and grossly negligent companies. The need for laws to rein in these companies then becomes largely self-evident.

The public is a powerful force for legislative reform because voters are a constituency which politicians who wish to remain in office simply cannot afford to ignore. If this is so, then the importance of public opinion should increase as an election approaches. The converse, however, may also be true: corporate disasters which occur early in a party’s term of office may be long forgotten by the time of an election or take a back seat to other, more pressing issues. In the same way as disasters can incite the public, so too can subsequent events divert the public’s attention to some other issue. In England, as a 2005 election looms, events in Iraq have displaced corporate irresponsibility as the primary concern of most of the electorate. Indeed, the government’s continual need to address issues relating to the war in Iraq may be part of the reason why corporate killing legislation has dropped in its legislative priorities.

Public support for corporate killing legislation may have waned for another reason. More clearly, perhaps, than the families of victims, the public has come to appreciate the trade-offs that are involved in reform. Immediately after the series of train crashes in England referred to previously, there was a clamour for rail companies to take greater responsibility for the safety of their passengers, and public opinion was receptive to the idea of criminal penalties for companies that did not take safety sufficiently seriously. However, when the railroad companies responded by lowering the speeds at which trains travelled (to lessen both the likelihood of a crash and the extent of injury should a crash occur), reducing the number of scheduled trains (so that there were fewer trains in a position to crash), and cancelling service on weekends (to allow needed repairs of the tracks), one could discern a visible shift in public opinion from its previous concerns with safety to a demand for a more punctual, efficient and reliable rail service.

VI THE POSITION OF THE GOVERNMENT

The need for, and consequences of, a criminal law punishing corporate killing are no doubt exaggerated by both sides, as well as being subject to distortion by catastrophic events. In all probability businesses would be able to cope with a corporate killing offence if it were to be enacted, just as they have learned to cope with health and safety laws, despite strong reservations at the outset. If a corporate killing bill were to be defeated, on the other hand, corporate wrongdoing could probably be curbed through more rigorous enforcement of existing health and safety legislation. Fresh life could be breathed into the law of manslaughter by the courts, and procedural rules that discourage class action tort suits by victims of a disaster could be relaxed. Nonetheless, the issue of corporate killing has taken on a life of its own and now possesses an expressive and symbolic importance that may far transcend its intrinsic merits.^[113]

While the authority to enact criminal offences belongs to Parliament, whether Parliament ever is given the opportunity to consider a bill lies largely in the hands of the government.^[114] The present Labour government, despite its 1997 manifesto commitment, repeated in its 2001 manifesto, has yet to bring forward a corporate killing bill and has shown no great urgency in doing so. The government will of course join in the chorus of condemnation that follows a disaster which may be attributable to corporate misconduct, as not to do so would court voter disapproval. When pressed, it will repeat the mantra that it will introduce legislation when Parliamentary time allows or at some future date. However, when the glare of the media grows dim and public anger has cooled, the government may see little to be gained from taking such legislation forward.

Does the government find itself in the middle, buffeted, on the one hand, by corporate lobbyists, and, on the other, by public and media pressures, and trying to steer a middle course that causes as little offence as possible? Or is it more of a partisan player, actively promoting a corporate agenda. If the latter, is it because the government is conniving or conspiring with the forces of capitalism, or is it rather that the independent interests of the government happen to coincide with the corporate desire to be subject to the minimum of regulation?

Pluralists conceive of the role of a government in terms of reconciling diverse interests, minimising conflicts and striving for a consensus.^[115] Whatever its private preferences, the government wants to be seen as promoting the ‘public good’, and not as kowtowing to narrow business interests. It seeks to cultivate a reputation for being just, fair-minded and unbiased. In the context of corporate killing legislation, a government has no wish to alienate concerned citizens, if for no other reason than they are potential voters. Nor does a Labour government wish to antagonise its union base or traditional socialist supporters. It recognises that unions, NGOs and public interest groups can play a critical role during an election in mobilising their members to vote. On the other hand, the government has no desire to alienate the business community or its corporate supporters, whose campaign donations and endorsements at an election may also be pivotal. Elections aside, the government does not want to precipitate corporate flight from Britain or do anything to discourage new firms from locating their headquarters or subsidiaries in the country. Thus the government may genuinely find itself caught in the middle between competing forces. While public pressure may force it to enact legislation that is damaging to corporate interests, it may write the legislation in a way as to minimise the extent of the damage so as not to alienate the corporate community any more than necessary. In this way the government may hope to please everybody.

While admittedly a gross oversimplification, Marxists believe that governments consciously and deliberately strive to promote the interests of the ruling classes at the expense of the working classes.^[116] Law is one of the vehicles both for protecting corporate interests and for repressing activities that threaten these interests.^[117] Neo-Marxists accept that the occasional law advancing worker interests may be sometimes necessary to stave off the greater evil of revolution, and that the longer term interests of capitalism may be served by the passage of token pro-worker legislation.^[118] Even then, such laws will be watered down as much as possible and may subsequently be enforced in a minimalist manner. In England, for example, health and safety laws were passed reluctantly, frequently with built-in defences that favoured employers (such as the requirement that companies only need to do what is ‘reasonably practicable’ to protect employees)^[119] and enforced unenthusiastically, and then primarily through means that did not entail resort to criminal prosecutions.^[120]

Conceding the government often appears to be promoting corporate interests, this deference may be explicable more by the fact that the government’s own interests are served by maintaining a prosperous economy than by any covert desire to advance the cause of capitalism. Companies contribute to the nation’s well-being through the taxes they pay. They provide employment, and spare the government from having to pay welfare and unemployment benefits. A thriving economy, which depends on business activity, enhances the reputation of a state, and attracts workers and new and larger corporations. These in turn create additional jobs, more revenue for the government and a further reduction in state welfare and unemployment benefit payments. The Damoclean sword hanging over the government’s head, of which ministers may receive periodic reminders from the business community (not that such reminders will be necessary), is that companies that are subjected to stringent controls, capped by an offence of corporate killing, might have to think seriously about relocating in a less hostile business environment.

Some believe that corporate threats to relocate are a ruse.^[121] The transactional costs in moving one’s business may be unduly prohibitive and English companies may not be willing to abandon the advantages of being near to a major financial centre such as the City of London. Skilled workers may also not be as easy to find in other countries. These arguments, however, apply principally to companies already located in England. A company choosing where to establish its corporate headquarters may have many options, and, with the rise of e-commerce, may not be overly concerned with which option it chooses. Other considerations being roughly equal, the company’s potential liability for corporate killing may become a decisive factor. A corporation will have even more choice in determining where to build a new factory or plant that requires only unskilled labour. In respect of companies already located in England and Wales, there is the similar risk that, even if they do not transfer their headquarters, they may shift to developing countries, where law enforcement is more lax, those aspects of their business operation that pose the greatest risk of giving rise to workplace deaths and subsequent prosecutions for corporate killing. As already observed, any such relocation will cost jobs, which will in turn give rise to protests from both unions and the local community. The bottom line is that even if the corporate sector is bluffing in its threats to relocate, it may be a bluff that the government is not in a good position to call.

When the government wishes to drag its feet, as it appears inclined to do with respect to a corporate killing bill, it is not difficult to find reasons for not acting. There is always scope for more consultation, further research and greater consideration of alternatives. There have already been several further rounds of consultation after the initial consultation exercise initiated by the publication of the Home Office proposals in 2000 had ended. This pattern of retracing well travelled ground is becoming a seemingly conditioned response whenever the pressure for action builds.

The continuing debate over the best way to tackle the problem of corporate crime provides another excuse for inaction. Some maintain that, in an era of globalisation, the problem needs to be addressed on a regional or international level,^[122]

national legislation serving only to export corporate misconduct. Such internationalists are prepared to await the latest European directive or UN treaty. In the meanwhile, critical time passes without progress on domestic legislation. Another school argues that, before enacting a new law, there should be a review of health and safety laws to determine whether, perhaps with some modifications and a more rigorous approach to enforcement, they might be able to deal adequately with the challenge of workplace deaths.^[123] Curiously, this was the position taken by the CBI in responding to the government’s initial consultation paper. The response was curious — and ironic — because industry had long opposed health and safety laws; of course, when faced with a more draconian law of corporate killing, the less stigmatic health and safety laws came to look increasingly attractive. Thus, arguments that the government needed to look outside its borders for inspiration, or inside at existing health and safety laws, both of which suggestions were not without merit, served in practice to become an excuse for procrastination.

In one sense this procrastination by a Labour government was rather surprising. Followers of British politics will be aware that in the past several years the government had come under attack as much from its own backbenchers as from the opposition — over foundation hospitals, over university top-up fees, and, most of all, over the Iraq war and its aftermath. A corporate killing bill could have been expected to be well-received by these same backbenchers, as well as by trade unions and Labour’s traditional socialist supporters. That the government refrained from introducing such a bill is powerful testimony to its even greater reluctance to antagonise the business community.

The government may also have begun to contemplate more seriously the practical effect of enacting a law of corporate killing. At some point it would inevitably have found itself under great pressure to bring a prosecution that it would have preferred to avoid, yet could not avoid because of the publicity surrounding the event in question (usually a disaster). Under Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, incorporated into domestic law by the Human Rights Act 1998, the government has a positive obligation to protect life.^[124] To fulfil this obligation, and to avoid embarrassing legal challenges, it could find itself having to initiate a prosecution for a corporate killing. Yet such a prosecution against a large and wealthy corporation could be expensive, complicated and time-consuming. Well-heeled corporations will have not only the financial resources, but also the motivation, to vigorously contest a charge as serious as corporate killing. Further, if directors were to be accorded a ‘right of silence’, either on their own behalf or that of their company, the government could find itself without the critical testimony of those in the best position to address the issue of ‘management failure’, which lies at the heart of the corporate killing offence. Jury verdicts are also notoriously unpredictable,^[125] and many critics of the jury system doubt that ordinary citizens are capable of following a protracted and complex trial. An acquittal would open the government to criticism, whether or not deserved, while a conviction would not ingratiate the government to the business community and could further precipitate the flight of companies from Britain.

VII CONCLUSION

The controversy that has swirled for over a decade around the need for an offence of corporate killing may seem out of proportion to its likely practical effect. The sanctions for a violation of such a law would be the same as for a violation of present health and safety laws, and the frequency with which any new law would be invoked probably would not be great (although this of course cannot be known until an Act is in force). It is doubtful that corporate killing legislation would displace or would be intended to displace prosecutions under existing health and safety laws, even in cases of workplace deaths. More likely any new law would be reserved for cases where a disaster involving multiple deaths had occurred, as in respect of the capsize of the Herald of Free Enterprise or the Southall or Ladbroke Grove train crashes, or where a company’s fault was particularly egregious.

Whether actual deterrence would be achieved by prosecutions under a new law of corporate killing is unclear.^[126] What may better explain the fierce corporate resistance to such proposals is the symbolism of a corporate killing law, suggesting, as it does, that companies are no better than common criminals of the most dangerous sort. Hawkins asserts that in enforcing health and safety law through prosecutions, the moral status of the violator is critical.^[127] But surely such moral valuations are more properly the province of traditional criminal law than of regulatory law, even when the latter entails prosecutions (which may be brought to provide evidence of organisational activity, to legitimate an agency’s authority, or to enhance the career prospects of the prosecuting inspector).^[128]

Snider offers another perspective for looking at a law criminalising corporate killing. Such a law fits into an ongoing dialectic process whereby society’s attitudes are gradually being transformed in respect of what constitutes legitimate corporate behaviour.^[129] Altered social attitudes change our expectations of what constitutes acceptable and unacceptable corporate conduct. In the process the ‘price of corporate legitimacy’ — the standards of corporate behaviour necessary to secure public acceptance — is irreversibly raised.^[130] In the evolving ideological climate, corporate conduct that leads to death and serious injury will no longer be lightly tolerated. Explanations that a workplace death is attributable to misfortune, ‘unavoidable accidents’ or an ‘act of God’ will become more and more tenuous.

Normally, steps in a dialectic process tend to be small and incremental. Every now and then, however, a major leap forward can be discerned. Arguably such an advance occurred in the early nineteenth century with passage of the Factories Acts. Enactment of a law criminalising corporate killing would fall into the same category. It would represent a fundamental reassessment of the criminogenic capacity of companies, an acknowledgment that companies don’t simply provide the setting in which industrial ‘accidents’ occur but are themselves the cause of these ‘accidents’ — the company as killer.

A redefinition of what constitutes acceptable corporate conduct may in turn affect how corporate directors and officials think about and manage workplace risk.^[131] Arguably, directors’ duties would expand to include the responsibility for creating risk management systems that would prevent serious harm. Were a law of corporate killing to be enacted, it would, ideally, be internalised and become an integral feature of the working environment, serving to define what systems, routines and practices are legitimate, shaping (albeit perhaps subconsciously) how employees go about their jobs, and leading to a reformulation of directors’ duties and what constitutes an acceptable modern corporate culture.^[132]

A law of corporate killing would also serve to bring issues of corporate fault from the shadows into the light. Currently, whether to investigate and prosecute a work-related death is a matter reserved largely for a regulatory agency. The agency’s capacity to act is limited by the resources, both human and financial, at its disposal. These resources are dependent on low-visibility budgetary decisions made by government officials. And, although it might not be subject to documentation, these budgetary decisions may well be influenced, either on a conscious or subconscious level, by behind-the-scenes lobbying by the corporate community. Transferring the responsibility for investigations to the police and the responsibility for prosecutions to the CPS might not be a panacea, but the decisions of these bodies are more open to public scrutiny. Rather than the corporate sector contributing the primary outside input on policies relating to the enforcement of laws directed at corporate wrongdoing, commentators, the media and the public would be able to add their voice. The process would be less secretive and more transparent.

To some extent the debate surrounding the proposed law of corporate killing may already have served to change the nature of the discourse relating to corporate wrongdoing. The debate has sensitised legislators and the public to the role of companies in work-related deaths. The term ‘corporate manslaughter’ has entered the lexicon. There has been a documented rise in the number of administrators and politicians prepared to condemn corporate misconduct in ever stronger criminal terms.^[133] The number of prosecutions for corporate manslaughter under review or being assayed by the CPS and the HSE is rising,^[134] and companies increasingly are taking pre-emptive measures to forestall such prosecutions by better protecting against workplace injury and deaths.^[135] These shifts may be directly attributable to the spotlight cast by the proposed offence of corporate killing, even if a law is never enacted. Indeed, and ironically, these developments may ultimately prove counterproductive to the enactment of a Corporate Killing Act, if they are interpreted to show that voluntary action by companies is feasible and that present laws, if properly and rigorously enforced, are adequate to address the problem of work-related deaths. Jack Straw, the former Home Secretary (and present Foreign Secretary), who wrote the foreword to the government’s 2000 consultation paper, has written a recent letter suggesting that the need for corporate killing legislation may merit rethinking.^[136]

VIII EPILOGUE

On 21 May 2003, David Blunkett, the successor to Jack Straw as Home Secretary, announced that the government would publish a ‘draft’ corporate killing bill in the autumn. His pronouncement raised speculation over what had caused the government to act after nearly a decade of inaction. The unremitting pressure from victims’ groups and their supporters certainly must have played a part. Spurred on by these forces, a non-binding early day motion had been introduced in Parliament in the spring of 2003 urging the government to consider enactment of a corporate killing offence as a matter of urgency. This motion attracted well over 100 signatories. At the time, the government’s flagship bill on Criminal Justice was wending its way through Parliament. This bill already was encountering resistance because of provisions that would restrict the right to jury trial. The possibility of a corporate killing amendment may have been seen as further diminishing the prospects for the bill’s passage. By promising a ‘draft’ bill in the future, the government may have hoped to buy time.

Understandably, the Home Secretary’s announcement was warmly greeted by supporters of corporate killing legislation. The endgame was at last in sight. Parliament would be afforded the opportunity to vote on a bill. For its part, the corporate sector may not have been that dismayed by the Home Secretary’s announcement. First, as noted previously, the announcement was accompanied by a clear indication that any new legislation would not target directors, thus removing one of a potential bill’s most objectionable features. Secondly, the ambiguity and indefiniteness of the Home Secretary’s announcement, coupled with an indication that yet another round of consultation would be undertaken, may have convinced business leaders that they would have additional chances to weaken any bill that might ultimately be brought forward. Finally, the politically astute would have noted that the Home Secretary had made a subtle but significant change in the government’s commitment, now speaking in terms of introducing a ‘draft’ bill rather than a bill. Unlike a formal bill, a ‘draft’ bill has to be reviewed by one or more Parliamentary select committees (assuming the committees can find time for it). As select committees will generally receive evidence, both written and oral, from witnesses, business leaders would be afforded another opportunity to express their reservations. The relevant select committee might then recommend further changes before a formal bill could be reported to the House of Commons.

Any exhilaration experienced by the supporters of corporate killing legislation was not to last. Despite the Home Secretary’s verbal commitment, no bill or even draft bill appeared in 2003. Nor was any mention of it made in the Queen’s speech opening Parliament. When pressed, the Home Office stated that it intended to introduce a bill by Easter, but that deadline too came and went. At a conference in late April 2004, Baroness Scotland, the Home Office minister, representing the government, stated that it was still the government’s intention to publish a draft bill before the end of the parliamentary session.^[137] However, Baroness Scotland’s timetable also slipped. Finally, in the Queen’s speech of November 2004, the government stated that it planned to introduce a draft corporate manslaughter bill in the following legislative session. However, with an election looming in the spring of 2005, it is doubtful that serious progress can be made on such a bill before the election. The Times newspaper gave the legislation a ‘Survival rating’ of 0.^[138] In short, it is most unlikely that any actual Bill will be placed before Parliament during the next legislative session, and if the Conservative Party were to win the election, ever. More than ten years after the proposal for a law of corporate killing was first mooted by the Law Commission, whether such a law will ever see the light of day, and what form it will take, remains as clouded as ever.

[†] Professor of Law, University of Essex (England). The author wishes to acknowledge the constructive suggestions and input provided by Tony Barker, David Bergman, Brigid Hadfield, Andy Hall, Sabine Michalowski, Maurice Punch, Albert Weal and Celia Wells.

[1] The Law Commission was established by the Law Commissions Act 1965 (UK) for the purpose of promoting the reform of the law in England and Wales.

[2] Law Commission, Criminal Law: Involuntary Manslaughter, Consultation Paper No 135 (HMSO 1994) pt IV.

[3] Law Commission Report, Legislating the Criminal Code: Involuntary Manslaughter, No 237 (HMSO 1996) pt VIII.

[4] One should perhaps not put too much store in manifesto commitments, which may be a product of internal party lobbying, while lacking the support of the leadership. On the other hand, successive Home Secretaries — Jack Straw and David Blunkett — both strongly endorsed this legislation.

[5] Home Office, Reforming the Law of Involuntary Manslaughter: The Government’s Proposals (HMSO 2000) ch 3.

[6] Ibid ch 3.1.9.

[7] Edwin Sutherland, ‘White-collar Criminality’ (1940) 5 American Sociological Review, 1

[8] See, eg, Paul Tappan, ‘Who is the Criminal?’ (1947) 12 American Sociological Review, 96.

[9] See Keith Hawkins, Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency (2002).

[10] See Rick Sarre and Jenny Richards, ‘Responding to Culpable Corporate Behaviour’ (this issue); Andy Hall, Richard Johnstone and Alexa Ridgway, ‘Reflection On Reforms: Developing Criminal Accountability For Industrial Deaths’ (Working Paper No 26), National Research Centre for Occupational Health and Safety (2004) viewed at <http://www.ohs.anu.edu.au/ publications/index.html>.

[11] A few caveats might be appropriate on the dangers of assuming that a particular piece of corporate criminal legislation, such as an offence of corporate killing, is viewed in the same light by the entirety of the business community. First, there are many companies which genuinely strive to behave in an honest, ethical and law-abiding manner, for a wide range of reasons, and are not averse to laws that will rid their industry of the ‘cowboys’ who give it a bad name. So, for example, firms in the financial sector may actively support insider trading laws because they do not wish for potential investors, upon whom they are dependent for capitalisation, to lose confidence in the stock market (See Laureen Snider, ‘The Regulatory Dance: Understanding Reform Processes in Corporate Crime’ (1991) 19 International Journal of the Sociology of Law 209). A second point is that companies in an industry are likely to be more or less hostile to particular legislation depending, largely, on its effect on them. While companies in the construction, manufacturing, transport and extraction industries may vigorously oppose a corporate killing or industrial manslaughter bill, these same companies may be ambivalent to bills regulating financial services. Conversely, those in the financial services sector may have little interest in whether a law criminalising corporate killing or industrial pollution was enacted.

[12] See Health and Safety at Work etc Act 1974 (UK).

[13] Some, however, see this defence as designed to benefit companies. See Andrew Hopkins and Nina Parnell, ‘Why Coal Mine Safety Regulations in Australia are not Enforced’ (1984) 12 International Journal of the Sociology of Law 179. In Davies v HSE [2002] EWCA Crim 2949 this reversed burden was found not to be in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[14] See Fiona Haines and Andy Hall, ‘The Law and Order Debate in OHS’ (2004) 20 Journal of Occupational Health and Safety Australia and New Zealand 263; Andy Hall and Richard Johnstone, ‘Exploring The Re-Criminalising of OHS Breaches in the Context of Industrial Death’ (this issue).

[15] On the topic of punitive regulatory legislation, see Robert Baldwin, ‘The New Punitive Regulation’ (2004) 67 Modern Law Review 351.

[16] See Hawkins, above n 9, 43.

[17] See Home Office, above n 5, para 3.1.7.

[18] Ibid para 3.1.8.

[19] Ibid para 3.1.7.

[20] But see, infra, the discussion relating to enforcement.

[21] On the effect of publicity on a company’s reputation, see generally, Brent Fisse and John Braithwaite, The Impact of Publicity on Corporate Offenders (1983).

[22] The accountancy firm of Arthur Andersen lost many of its prized employees, as well as its clients, following public revelation of its role in the Enron collapse.

[23] See Andrew Ashworth, ‘Criminal Attempts and the Role of Resulting Harm under the Code, and in the Common Law’ (1988) 19 Rutgers Law Journal 725; James Gobert, ‘The Fortuity of Consequence’ (1993) 4 Criminal Law Forum 1; J C Smith, ‘The Element of Chance in Criminal Liability’ (1971) Criminal Law Review 63.

[24] Report of Court of formal Investigation No 8074, Department of Transport m.v. Herald of Free Enterprise (1987).

[25] Cullen Report, Ladbroke Grove Rail Inquiry (HMSO 2002) pt 1.

[26] See Louise Christian, ‘Rail Crash Litigation — Southall and Ladbroke Grove’ (2001) Journal of Personal Injury Law 339.

[27] The way to avoid such inequities would be by enacting crimes of endangerment that were premised on the risk created rather than the result incurred. See generally James Gobert and Maurice Punch, Rethinking Corporate Crime (2003) ch 4.

[28] John Braithwaite, ‘Inegalitarian Consequences of Egalitarian Reforms to Control Corporate Crime’ (1980) 53 Temple Law Quarterly 1127.

[29] See Wyn Grant, Pressure Groups and British Politics (2000).

[30] Andrew Hopkins, Making Safety Work: Getting Management Commitment to Occupational Health and Safety (1995).

[31] Home Office, above n 5, para 3.1.8.

[32] See Gobert and Punch, above n 27, 106.

[33] Hidden Report, Investigation of the Clapham Junction Railway Accident (HMSO 1989).

[34] See Christian, above n 26.

[35] See Laureen Snider, ‘Towards a Political Economy of Reform, Regulation and Corporate Crime’ (1987) 9 Law and Policy 37.

[36] Ibid; see also Braithwaite, above n 28.

[37] See Snider, above n 11. The tobacco industry, for instance, has funded many studies on the effects of smoking.

[38] Braithwaite, above n 28, 1135.

[39] See Steve Tombs and Dave Whyte, ‘Two steps forward, one step back: towards accountability for workplace deaths?’ (2003) Policy and Practice in Health and Safety 9, 25.

[40] Sometimes a director of a company or business executive may even have a spouse who is an MP.

[41] See Michael Useem, The Inner Circle (1984).

[42] See Snider, above n 11.

[43] See Hopkins and Parnell, above n 13 (focusing on the ‘so far as is reasonable practical’ language contained in OHS legislation).

[44] See Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153.

[45] See, eg, David Bergman, The Case for Corporate Responsibility: Corporate Violence and the Criminal Justice System (2002) (Disaster Action); Brent Fisse and John Braithwaite, Corporations, Crime and Accountability (1993); Celia Wells, Corporations and Criminal Responsibility (2^nd ed, 2001).

[46] See, eg, OLL Ltd & Kite v Secretary of State for Transport (1994, unreported).

[47] See Gobert and Punch, above n 27.

[48] 93 Crim App R, 83–84.

[49] R v Stanley and others (Unreported, Central Criminal Court, Turner J, 19 October 1990). It is interesting to contrast this conclusion with that reached in the Sheen Report (1987: Department of Transport), to the effect that ‘from top to bottom the body corporate was infected with the disease of sloppiness.’

[50] Law Commission Report, above n 3.

[51] Perhaps the most important departure was the government’s proposal to extend the offence to all ‘undertakings’ rather than restricting it to just companies.

[52] See Mike Appleby, ‘Accounting for Corporate Killing — Time for Change’ (2003) 104 Occupational Health Review 9.

[53] Home Office, above n 5, para 3.1.8(3). This also seems to have been the intent of the Law Commission. See Law Commission Report, above n 3, para 8.20.

[54] See P R Glazebrook ‘A Better Way of Convicting Business of Avoidable Deaths and Injuries?’ (2002) 61 Cambridge Law Journal 405, 411.

[55] See Hall, Johnstone and Ridgway, above n 10. See also Adam Sutton and Ron Wild ‘Corporate Crime and Social Structure’ in Paul Wilson, and John Braithwaite (eds) Two Faces of Deviance: Crimes of the Powerless and Powerful (1978).

[56] See Home Office, above n 5, paras 3.4.7–3.4.11.

[57] See Centre for Corporate Responsibility (2000) Response to government consultation document; Hopkins, above n 30.

[58] This ignores the fact that when a company prospers, its directors and officers will usually also share in the spoils.

[59] See Appleby, above n 52, 11.

[60] See Daniel Curran, Dead Laws for Dead Men (1993); James Wilson, The Politics of Regulation (1980); Hopkins and Parnell, above n 13.

[61] See, eg, Frank Pearce and Steve Tombs, ‘Ideology, Hegemony and Empiricism: Compliance Theories of Regulation’ (1991) 30 British Journal of Criminology 423.

[62] See Hawkins, above n 9.

[63] In a Health and Safety Commission (‘HSC’) discussion paper, ‘Becoming a Modern Regulator’ quoted in a press release, 12 September, 2004 from the CCA, the HSC acknowledged that ‘in recent years, there had had been deregulatory pressure from within government to reduce burdens on businesses.’ The Government’s own Budget report for 2004, again quoted in the CCA’s press release, affirms its commitment to bring about ‘targeted deregulatory changes to relieve burdens on business.’ See http:///www.corporateaccountability.org/press_releases/2004/sep12report intro.htm

[64] Hawkins, above n 9, 143.

[65] This decision contradicted non-binding guidance previously given by the Health and Safety Executive (‘HSE’) (2001) Directors’ Responsibility for Health and Safety. See www.hse.gov.uk/pubns/indg343.pdf.

[66] CCA, Making Companies Safe: What Works (2004).

[67] In its evidence to the Select Committee on Work and Pensions, the HSE conceded that its 2004 financial settlement with the government represented a significant reduction in spending power, inevitably forcing it to make hard choices about priorities. See http: ///www.corporateaccountability.org/press_releases/2004/sep12reportintro.htm.

[68] HSE, Report on Health and Safety Offences and Penalties (2002) 3.

[69] When Ronald Reagan was President of the United States, he espoused a pro-business deregulatory philosophy that led to a severe decline in the number of staff, and in consequence the number of prosecutions, of watchdog agencies whose responsibility was to prevent corporate offences. See James Coleman, The Criminal Elite: The Sociology of White Collar Crime (1985).

[70] It should be noted, however, that there is in force a protocol that allows for joint investigations by the police and the HSE if it appears that a charge of manslaughter may be warranted. See HSE, Crown Prosecution Service and Association of Chief Police Officers, Work-related Deaths: Liaison with the Police and Crown Prosecution Service (1998).

[71] See Bergman, above n 45.

[72] See Christian, above n 26.

[73] Presumably the present arrangement whereby there is the opportunity for a joint investigation by the HSE and police would continue. See above n 70.

[74] See Gobert and Punch, above n 27, 200–04.

[75] Home Office, above n 5, para 3.7.6.

[76] See, eg, Brent Fisse, ‘Sentencing Options against Corporations’ (1990) 1 Criminal Law Forum 211; James Gobert, ‘Controlling Corporate Criminality — Penal Sanctions and Beyond’ (1998) 2 Web Journal of Current Legal Issues webjcli.ncl.ac.uk/1998/issue2/ gobert2/html.

[77] See Brent Fisse ‘Community Service as a Sanction against Corporations’ [1981] Wisconsin Law Review 970.

[78] See Fisse and Braithwaite, above n 21.

[79] See DLgs (Legislative Decree) art 13 (8 June 2001) discussed in James Gobert and Emilia Mugnai ‘Coping with Corporate Criminality — Some Lessons from Italy’ (2002) Criminal Law Review 619.

[80] See United States Sentencing Guidelines for Organisational Offenders.

[81] Council of Europe (1990) Recommendation No R(88) of the Committee of Ministers to Member States concerning Liability of Enterprises having Legal Personality for Offences committed in the Exercise of their Activities.

[82] See Appleby, above n 52; Christian above n 26.

[83] See Mancur Olson, The Logic of Collective Action (1965) (the most powerful pressure group is the corporate lobby).

[84] Eg, Disaster Action, the Herald Families Association, the Marchioness Action Group, the Safety on Trains Action Group, and the Simon Jones Memorial Campaign. The latter organization is of particular significance in that its formation can be traced not to a disaster involving many deaths and injuries, but to the death of a single employee.

[85] Susan Hadden, ‘Citizen Participation in Environmental Policy-Making’ in Sheila Jasanoff (ed) Learning from Disaster, Risk Management after Bhopal, quoted in Steve Tombs, ‘Law, Resistance and Reform: “Regulating” Safety Crimes in the UK’ (1995) 4 Social and Legal Studies 343, 351.

[86] See Braithwaite, above n 28.

[87] See Hall and Johnstone, above n 14.

[88] A similar obliviousness to loopholes in coal mine safety laws in Australia is documented by Hopkins and Parnell. See Hopkins and Parnell, above n 13, 185–87.

[89] See Snider, above n 11, 211.

[90] See, eg, Ian Ayres and John Braithwaite, Responsive Regulation (1992); John Braithwaite and Gilbert Geis, ‘On Theory and Action for Corporate Crime Control’ (1982) 28 Crime and Delinquency 292; Brent Fisse and John Braithwaite, Corporations, Crimes and Accountability (1993); Brent Fisse and John Braithwaite, The Impact of Publicity on Corporate Offenders (1983); Peter Grabosky and John Braithwaite, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies (1986); Peter Grabosky and John Braithwaite, Business Regulation and Australia`s Future (1994); Brent Fisse and Peter French (eds), Corrigible Corporations and Unruly Law (1985).

[91] Eg, Pamela Bucy, ‘Corporate Ethos: A Standard for Imposing Corporate Criminal Liability’ (1991) 75 Minnesota Law Review 1095; John Coffee, ‘Beyond the Shut-Eyed Sentry: Toward a Theoretical View of Corporate Misconduct and the Effective Legal Response’ (1977) 63 Virginia Law Review 1099; John Coffee, ‘`No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment’ (1981) 79 Michigan Law Review 386; James Gobert and Maurice Punch Rethinking Corporate Crime (2003); Gary Slapper and Steve Tombs, Corporate Crime (1999); Celia Wells, Corporations and Criminal Responsibility (2^nd ed, 2001).

[92] See Snider, above n 11, 217–18.

[93] Perhaps the most well known of these is Milton Friedman. See, eg, Friedman, ‘The Social Responsibility of Business is to Increase its Profits’ (1970) New York Times Magazine 32.

[94] Eg, Susan Wolf, ‘The Legal and Moral Responsibility of Corporations’ in J Roland and John Chapman (eds) Criminal Justice (1985) 267.

[95] Eg, Vikramaditya Khanna, ‘Is the Notion of Corporate Fault a Faulty Notion? The Case of Corporate Mens Rea’ (1999) 79 Boston University Law Review 355; Vikramaditya Khanna, ‘Corporate Criminal Liability: What Purpose Does it Serve’ (1996) 109 Harvard Law Review 1477.

[96] See Snider, above n 11.

[97] John Braithwaite is a conspicuous exception.

[98] See Snider, above n 11.

[99] The agenda of many NGOs and public interest groups is broad, with issues of corporate accountability not central to their mission. One major exception is the CCA, whose raison d’etre is to promote worker and public safety, and to undertake research on matters relating to law enforcement and corporate criminal accountability.

[100] See Snider, above n 11, 211.

[101] More recently, the Trade Unions Congress in particular has been much more active in lobbying for an offence of corporate killing.

[102] See Bridget Hutter and Sally Lloyd-Bostock, ‘The Power of Accidents’ (1990) 30 British Journal of Criminology 409; Snider, above n 35; Tombs, above n 85.

[103] Hutter and Lloyd-Bostock, above n 102, 410.

[104] Unfortunately, at times Parliament can act too hastily, simply to be seen as addressing the problem. Many believe that this is what happened, for example, in respect of the Dangerous Dogs Act 1991 (UK), when public concern over a few well-publicised incidents involving allegedly dangerous breeds of dogs may have given rise to ill-advised legislation.

[105] See Snider, above n 35.

[106] Victoria, Longford Royal Commission, The Esso Longford Gas Plant Accident (1999).

[107] See Karen Wheelright, ‘Corporate Liability for Workplace Deaths and Injuries — Reflecting on Victoria’s Laws in the Light of the Esso Longford Explosion’ [2002] DeakinLawRw 16; (2002) 7 Deakin Law Review 323.

[108] Section 13 of the Bill.

[109] Section 14 of the Bill.

[110] See Sarre and Richards, above n 10. See also Harry Glasbeek, Crime, Health and Safety and Corporations: Meanings of Victoria’s Failed Crimes (Workplace Deaths and Serious Injuries) Bill 2001, Victoria, and Its Equivalent Elsewhere (forthcoming).

[111] See, eg, Stan Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (1980); Andrew Ward, Talking Dirty: Moral Panic and Political Rhetoric (1996); Michael Welch, Flag burning: Moral Panic and the Criminalization of Protest (2000).

[112] See Tombs and Whyte, above n 39.

[113] See Haines and Hall, above n 14.

[114] While a private member’s bill or an amendment to a Criminal Justice bill is possible, without government support such individual initiatives are unlikely to be successful.

[115] See, eg, Grant Jordan, ‘The Pluralism of Pluralism: An Anti-theory’ (1990) 38 Political Studies 286; Earl Latham, The Group Basis of Politics (1953); Brian Smith, Policy Making in British Government (1976).

[116] See Karl Marx, Capital (1867; 1974). See also Ralph Milliband, The State in Capitalist Society: The Analysis of Systems of Power (1974).

[117] See Marx and Milliband, above n 116. See also Alan Hunt, ‘Marxism and the Analysis of Law’ in Adam Podgorecki and Christopher Whelan (eds) Sociological Approaches to Law (1981) 91.

[118] See Snider, above n 35, 39.

[119] See Health and Safety at Work etc Act 1974 (UK) ss 2, 3. See also Hopkins and Parnell, above n 13.

[120] See Hawkins, above n 9.

[121] See Jeffrey Robinson, Prescription Games: Money, Ego and Power inside the Global Pharmaceutical Industry (2001).

[122] See Silvia Danailov, ‘The Accountability of Non-State Actors for Human Rights Violations: The Special Case of Translational Corporations’ (1998) www.humanrights.ch/ dokumentationem/000218danailov.pdf; see generally Gobert and Punch, above n 27, ch 5.

[123] See Kit Carson and Richard Johnstone, ‘The Dupes of Hazard — Occupational Health and Safety and the Victorian Sanctions Debate’ (1995) 26 Australian and New Zealand Journal of Sociology 126; Johnstone and Hall, above n 13.

[124] See Kaya v Turkey [1998] IIHRL 12.

[125] Recently, an application for judicial review was brought by the family of Simon Jones challenging the decision of the Crown Prosecutor not to bring charges of corporate manslaughter against Euromin Ltd in connection with Simon’s death. The application was successful (see R v DPP, ex parte Jones [2000] IRLR 373), and a subsequent prosecution for manslaughter was instituted. However, despite what many observers thought was a strong case, the jury acquitted the company. See Archive, ‘Alarm as employer cleared in death case’ http:/www.guardian.co.uk/Archive/Article/0,4273, 4310372,00.html.

[126] Compare Sally Simpson, Corporate Crime, Law and Social Control (2002) and Hawkins, above n 9, ch 9 (questioning the instrumental effectiveness of prosecutions) with Hopkins, above n 30 (credible threat of prosecution, particularly of corporate directors, will cause safety issues to be taken more seriously).

[127] Hawkins, above n 9, 335.

[128] Ibid 10.

[129] Snider, above n 35.

[130] Ibid 57.

[131] See Robert Baldwin and Richard Anderson, Rethinking Regulatory Risk (2002).

[132] See Bridget Hutter, Regulation and Risk (2001).

[133] See Robert Baldwin, ‘The New Punitive Regulation’ (2004) 67 Modern Law Review 351, 356–360.

[134] See Gerald Forlin and Mike Appleby, ‘Corporate Killing — Dead or Alive’ New Law Journal, 9 January 2004, 11.

[135] See Tombs and Whyte, above n 39, 23.

[136] See http://www.guardian.co.uk/guardianpolitics/story/0,1333113,00.html.

[137] Conference on ‘Corporate Accountability’, London, 29 April 2004 (Sponsored by the CCA).

[138] Gibb, ‘Corporate Killing’, The Times, (Sydney) 24 November 2004, 28.