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«Can Corporations be Criminally Responsible? Conceição Soares Assistant Professor Centro de Estudos em Gestão e Economia/ Faculdade de Economia e ...»

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At the end of the prosecution, as Clarkson comments, “it is hardly surprising that the trial judge, Turner J, directed acquittals against P&O and the five most senior employees” (Clarkson 1996:561), because it could not be proved that the risks of open-door sailing were the direct responsibility of one senior officer. As Field and Jörg contend, “collective responsibility becomes lost in the crevices between the responsibilities of individuals.” (1978:162) The Special Issue on Behavioral and Social Science © Centre for Promoting Ideas, USA www.ijhssnet.com However, one must then raise the questions: Why should it be assumed that only one or at best two people be held responsible? Why cannot all be charged in the name of corporate responsibility? Admittedly one would have to have a scale of punishment with the “brains” at the hierarchy of “brains”, so to speak, bearing the heaviest. It is worth labouring the point (already made earlier) that if senior “brains” could be held responsible for fiduciary probity, then why cannot they be held responsible also for the health and safety of the operations they run as a business? As Wells noted: “Someone, if not more than one person, in P&O’s (then Townsend Car Ferries Limited) management knew that roll on-off ferries were potentially unstable. One task for criminal lawyers is to question critically how such knowledge within corporations can be related to familiar notions of individual culpability.” (1989:934) As it was mentioned in the Sheen Report, the management was aware of the instability of the ferry; however, no measures were taken. As it can be read in the Report, it is interesting to note that a similar situation occurred with the vessel PRIDE, before what happened with the Herald. “On the 29 th October the assistant bosun of the PRIDE neglected to close both the bow and stern doors.” (Sheen Report:23) In June, Prides’s Captain Blowers sent a memorandum to Mr. Develin (director and chief superintendent) in which he said that an indicator light would enable the “bridge team to monitor the situation”. However, no measures were adopted and the Sheen Report concludes: “If the sensible suggestion that indicator lights be installed had received, in 1985, the serious consideration which it deserved, it is at least possible they would have been fitted in the early months of 1986 and this disaster might well have been prevented.” (Sheen Report:24) In spite of all the memoranda written to the higher management by employees in their attempts to improve the safety conditions, the corporation did not feel either morally or legally responsible for having acted so negligently. On the contrary, the corporation put pressure on the crew to turn round the ferry in record time, to transport an excessive number of passengers, and to maintain full speed in bad weather conditions. It also ignored the necessity of another ballast pump. It is clear that it was the corporation, which deserved to be found guilty and punished. As Clarkson mentioned, the families of the Herald’s victims did not primarily press the prosecution of the individuals but the prosecution of Townsend Car Ferries Limited, as they intuitively had felt that above all it was the corporation, which was at fault. (1996:563) We can say that it is, the corporation, Townsend Car Ferries Limited (and then P & O which took it over), which had failed in its duties because the highest management systematically refused to implement and improve the measures for safety, profit being probably its only concern. As the Sheen Report has said, installing another pump would only cost £25,000 but this “was regarded by the company as prohibitive.” (Sheen Report:24) Mr Sterling, a P&O chairman says, “my first responsibility is to the shareholders of P&O and profit is what it is all about”.

(Crainer 1993:17) However, according to critics, corporate responsibility should go beyond profits and in this concrete case, safety should have been one of the priorities of the corporation. However, such moral “sloppiness at the top leads to sloppiness down the line.”(Crainer 1993:17) According to Field and Jörg, the Dutch law of corporate liability, unlike English Law, “rests on those who have the power to control the general practices of the corporation. … It was not necessary to identify any individual as responsible for the sloppy supervision: it could be seen simply as a collective failure by management.” (1978:167) This reinforces French’s arguments that corporate intentions and responsibility can be investigated within a system of rules and commands, which are determined by corporate policy. But in English law, at present, there is neither the political nor the legal will to undertake such prosecution, a reluctance one can see yet again in the aftermath of the rail crash in Hatfield on 17 October 2000. Four people have been killed and many others injured.

Gerald Corbett, Railtrack’s chief executive during the inquiry refused to accept that the rail industry’s safety problems were due to management failure. He said, “it’s more of a system rather than a management failure….

(Harper 2001a:4) When Robert Owen, QC, counsel for the inquiry asked him who has responsible for the crash he answered: “I think it’s me. It’s clear in the public’s mind that they think it’s me (ibid).” Three months later it was confirmed that Railtrack was aware of the unsafe conditions of the track but had failed to act to remedy the situation till after the disaster. The report published by the HSE revealed that “the Hatfield track was so bad at the point of the crash that it shattered into 300 pieces, like a sheet of glass, and was therefore the direct cause of the accident.” (Harper 2001b:1) This case shares some similarities, concerning safety problems with the Herald of Free Enterprise disaster, in terms of causes and of consequences.





Vol. 3 No. 6 [Special Issue – March 2013] International Journal of Humanities and Social Science As Box advocates: “The essence of corporate crime is not the behaviour of individuals, but the “behaviour” of corporations. … In order to be effective, the level of intervention to regulate corporate crime has to be organizational rather than individual.” (1983:70) Mr. Gerald Corbett (director of Railtrack at the time of the Hatfield disaster) expressed his view about the government’s plan to introduce a new charge of corporate killing: “I think it would encourage a culture of secrecy and blame which is not necessarily an appropriate safety culture.” (Harper 2000:4) He did not back this up with detailed arguments. It is hard to make out what he could mean. However, his response was a clear indication that corporations would resist the introduction of such a charge with as much vigour as they are politically capable.

Conclusion Corporations do possess a structure and a set of coherent properties which make it possible to say that they are rational and autonomous agents (provided that agency is not understood uniquely to refer only to so-called “fleshand-blood” individuals as favoured by the philosophy of individualism). Furthermore, in virtue of the structural properties just due by their agency, it makes sense to hold them legally/criminally6 responsible, through certain key personnel in the corporate hierarchy who must, of course, be “flesh and blood” individuals, even to the extent of attributing to them that hall-mark of the theory of individual responsibility, namely, that of possessing mens rea. I have, tried to show that the notion of mens rea is not necessarily incompatible with that of corporate

responsibility, provided the following points are borne in mind:

(a) To recognise that pre-meditation or direct intention is irrelevant, as it is obvious that no corporations could be convicted of wilfully murdering their victims – not even tobacco companies, which continue to manufacture and sell cigarettes, could be thus convicted, in spite of the fact that one could show that they know that their products could lead to disease and death in a good many cases.

(b) To recognise all the same that indirect intention obtains. Corporations may be said knowingly (indirectly) to intend the harm in the sense that they can foresee that harm would occur, but are prepared to run the risk in doing so. Tobacco companies know that harm would come to some of their customers but this does not prevent them from making and selling their poisonous products. In this sense, they could be convicted of recklessness. In the same way, Townsend Car Ferries Limited (later P & O Ferries) also could and did foresee that harm could and would very likely occur, yet the corporation continued to cut costs by failing to implement certain safety measures, ranging from the installation of indicator lights on the bridge and a second pump, abandoning the policy of taking on passengers above the official limit or working their staff to exhaustion owing to the very tight scheduling of the voyages, to querying the very design of the ro-ro ferry itself without bulkheads so that more cars could be accommodated, but which would lead to easier flooding when water entered the ferry, and to its eventual faster sinking.

(c) To recognise that gross negligence (which does not rely on mens rea) leading to death, though perhaps rightly objected to in some cases where individual defendants are involved, may be said to be appropriately applied in the case of a corporation. The reason is that, unlike an ordinary individual agent, the corporation possesses vast resources, which it deploys in researching the market, in designing its product or service, in calling on science and technology to do its bidding, etc. In other words, it answers perfectly to the legal fiction of the “reasonable man”. As the “reasonable man”, the corporation ought to have foreseen, could have foreseen the harm that ensued.

(d) To recognise that a corporation is a highly structured entity with its own explicit aims and objectives, freely chosen and endorsed, and with clearly worked-out strategies for implementing them. In other words, a corporation knows or ought to know exactly what it is doing, is not ignorant or unfocused. As such, it satisfies the description that it is rational, free and autonomous, in much the same way as an individual agent may be said to be rational, free and autonomous. To be free and autonomous does not, of course, mean that the agent, whether individual or corporate, may act without constraints whatsoever – for example, either type of agent has to act within the confines of the law.

According to this, the core objection regarding corporate criminal responsibility could be overcomes. In other words, a corporation could be held responsible for manslaughter through recklessness or gross negligence.

Moreover, a corporation by failing to implement the necessary safety measures may also be said to be guilty of gross negligence as was the case with the Herald of Free Enterprise.

The Special Issue on Behavioral and Social Science © Centre for Promoting Ideas, USA www.ijhssnet.com Notes See Department of Transport, Report of Court No. 8074 (1987). This report, throughout the rest of this paper, will be referred to, for short, as the Sheen Report. Department of Transport, Report of Court No.8074, Formal Investigation of mv Herald of Free Enterprise, HMSO, London, 1987.

The refutation of that view is in Nicola Lacey, (2000) “Philosophical Foundations of the Common Law: Social Not Metaphysical”, in J. Horder (ed), Oxford Essays in Jurisprudence, Fourth Series, Oxford University Press, Oxford, p.17.

In the Marchioness/Bowbelle case, it was eleven years after the disaster that on the 14th February 2000, the Deputy Prime Minister, John Prescott ordered a formal investigation under the Merchant Shipping Act 1995 into the circumstances surrounding the collision. Mr. Prescott announced the appointment of Lord Justice Clarke to act as Wreck Commissioner to the Formal Investigation. A Non-Statutory Inquiry into the identification of victims began on the 30 November 2000; on 24 March (2001), the Guardian made available on the internet the access to the Formal Investigation Report. See “Report Spreads Blanket of Blame for Thames Tragedy”, Guardian, Saturday March 24, (2001).



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