The decision by the Crown Prosecution Service to press gross negligence manslaughter charges against a former senior officer of the South Yorkshire Police for 95 deaths at Hillsborough raises some crucial questions for understanding the law’s inherent bias, not least in the light of the unfolding tragedy at Grenfell Tower.
On the face of things, the prosecution of David Duckenfield and others will provide an opportunity for the courts to deliver justice, even if it comes three decades after the event.
In the intervening years there has been an ongoing political struggle to improve accountability for such multi-fatality incidents. Perhaps the high point was the passing of the Corporate Manslaughter and Homicide Act in 2007.
However, close scrutiny of this Act – widely referred to in the wake of Grenfell – reveals key questions about whether an event like Hillsborough happening today could be prosecuted in the same way.
Protecting powerful individuals
First, it is quite possible that, had the 2007 Act been in place at the time of Hillsborough, that Duckenfield would have been off the hook. A present-day prosecution, proceeding under the Act, would be directed at an organization (i.e. South Yorkshire Police or Sheffield Wednesday Football Club) not an individual.
The Act made a specific provision that individuals could not be prosecuted, only organisations. This last minute change in the drafting of the Bill meant that only the organisation, not any individual in control, can be prosecuted for the offence of corporate manslaughter.
In our book The Corporate Criminal, we call this the ‘criminal corporate veil’. It is a prime example of what happens so often in our legal system: the laws that appear to be holding powerful individuals to account are actually protecting them.
The criminal corporate veil acts as a shield against individual prosecution, because it is the anonymous and amorphous ‘company’ that ends up in the dock, rather than those individuals who are paid very well to make the key decisions and take responsibility for those decisions.
Now it is the case that individuals such as Duckenfield can still, post-2007, be prosecuted for the common law offense of gross negligence manslaughter. However, one effect of the Act’s implementation has been the guarantee of individual impunity.
In five of the 21 convictions under the Act so far, the prosecution was accompanied by or as a result of charges of gross negligence manslaughter being dropped against an individual company director and then a guilty plea being entered for the company.
This has led some legal commentators to refer to the threat of charges against individual directors being the ‘bait’ for a corporate manslaughter charge, on the basis that ‘an offer from… the company to plead guilty in exchange for the prosecution dropping charges against individuals might look like an attractive one to a director facing a risk of prison.’
In effect, one form of liability is being exchanged for another.
The failure to prosecute
Second, it is not clear that the Act has made it possible to prosecute medium-sized and large organisations more easily.
The fire at Grenfell seems exactly the kind of disaster which the Act was introduced to deal with. Yet in almost ten years since it was introduced, the convictions average at only two per year, and none of those cases involved large organisations.
In fact, following the deaths of six people at the Lakenal tower block in 2009, the CPS eventually decided against pursuing a case of corporate manslaughter against Southwark council, despite the fact that the Council ‘knew the building posed a fire risk but did not act and had not carried out a fire risk assessment.’
In many respects, Grenfell is a prima facie case for a prosecution under the 2007 law. There is mounting evidence of negligence, of cost-cutting, and of a string of warnings being dismissed and thus of a knowledge of risks at the very top of the Council. But the evidence and the arguments we set out above raise profound questions about both the likelihood and the effectiveness of such a prosecution.
A prosecution for Corporate Manslaughter would be against an organisation or organisations, not any individual(s). And if, as seems most likely, the organisation is the Royal Borough of Kensington and Chelsea, then any criminal penalties will most likely be a fine, levied on the local authority.
The problem with this as a route to justice is that the Council will decide how and where the fine should fall. It might choose to impose this fine on local taxpayers, or it might simply tap into its huge reserves. Either way, justice will not be achieved.
More law is not the solution
Moreover, any such outcome will not necessarily improve the chances of preventing another Grenfell. We do not see the law as a solution to tragedies like Grenfell and Hillsborough. Rather, the law reflects the deep structure of inequality in modern Britain that produces those tragedies.
But at the same time, we need to recognize that by providing impunity for those who have the power to alter the life chances of ordinary people, the law maintains and reproduces social inequalities in a very direct way.
We do not argue that the prosecution of individuals is a solution, but when individuals are prosecuted, this is an indication that the structure of impunity is vulnerable.
As a trade union adage has it, ‘when one Director goes down, all the rest sit up!’
Yet the vicious attack on ‘red tape’ led by successive governments has provided legal impunity to both public officials and private profit-making corporations; the chances of prosecution and investigation for breaching regulations by local authorities or state watchdogs have been effectively nullified since the beginning of the 21st-century.