Kicking and damning corporate souls

1 September 2011 by Rosalind English

As of today, government or private institutions tasked with keeping people in custody will be accountable in criminal law if it can be shown that a “gross duty of care” has led to the death of a detainee.

In 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force, creating  a new offence of corporate manslaughter. An offence is made out under this Act where a corporation’s activities cause a person’s death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances.

The so-called “custody provisions” (ss 2(1)(d) and 2(2)) were only brought into force on the 1st of September 2011. This means that it will in theory be possible to prosecute any organisation, government or private, from prisons and secure hospitals to juvenile detention facilities, for breach of the duty they owed to the deceased in custody.

It is questionable however whether this additional layer of accountability will add anything to the scrutiny imposed by the enhanced system of inquiry into suspicious deaths in so-called “Middleton” inquests (such an inquest is required when the state is obliged under Article 2 to investigate a potential breach of its positive Convention duty to protect life). A corporation, however iniquitous, has no individual sense of shame or limited lifespan of liberty to lose by virtue of a criminal conviction.

The arguments against the concept of corporate responsibility in this area hold true despite the fact that the Act has been in force for a number of years, and this may be a moment for reminding ourselves what they are:

• imposing criminal liability on corporations imposes stigma penalties on bodies insensitive to stigma but imposes on society the high costs of pursuing such punishment
• corporations are not affected by deterrence, only individuals are, so the public bears the cost of this futile enforcement mechanism
• corporate entities work as an effective veil for any individual responsibility and they can easily melt away under liquidation proceedings and reappear without any damage to reputation

These arguments add up in essence to what has been called the “anthropomorphic fallacy” and they were eloquently addressed by C.M. Clarkson’s 1996 paper “Kicking corporate bodies and damning their souls” (MLR 59(4): 557), now a classic review of the continuing controversy about corporate responsibility. The reference was to the 18th century Lord Chancellor’s rhetorical question – “Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?” (Edward, First Baron Thurlow 1731 – 1806)

The fact that this debate is as old as the hills is no reason not to revisit it, and now that a few years have elapsed since this much contested corporate liability has been in place it may well be worth applying some wisdom of hindsight to the contentions at its core. More specifically, some clarification should be sought on the relationship between criminal responsibility for custodial deaths and the “pull out all the stops”  inquest scrutiny imposed where the deceased has met his end in custody.

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