Tombs and whyte

Tombs and Whyte analyse the causes of such high rates of death and injury in the construction industry: the casualised, sub-contracted and increasingly migrant workforce; the long and complex supply chains; aggressive management; market pressures; industry norms; and problems in regulatory processes.

Weak or non-existent trade unions add to the dangers. An instructive example is a comparison between Norwegian and UK offshore oil industries. The North Sea, while an inhospitable environment, is not inherently dangerous in the sense that it necessarily produces high numbers of worker deaths and injuries. Tombs and Whyte also looked at the use made of powers under the Company Directors Disqualification Act to disqualify directors for health and safety failures in the management of companies.

This site uses Akismet to reduce spam. Learn how your comment data is processed. Skip to content Marxist Criminologists argue that the costs of elite crime are greater than the costs of street-crime, yet the elite are more likely to get away with their crimes.

The Corporate Criminal. Why Corporations Must Be Abolished. Key Ideas in Criminology. Abingdon: Routledge. Drawing upon a wide range of sources of empirical evidence, historical analysis and theoretical argument, this book shows beyond any doubt that the private, profit-making, corporation is a habitual and routine offender.

The bulk of those costs are borne by individuals as losses of earnings to a family when someone is made ill by industrial activity or they are socialised for example as a burden on the National Health Service.

It is the standard cost-accounting mechanisms used in standard accounting practice that reduce the value of death, injury, illness, widespread fraud, immis- eration and environmental degradation to mere externalities; that is, peripheral side-effects of corporate activity, which remain absent from the balance sheets of costs and benefits of such activity.

Quite simply, in standard systems of account- ing, some costs of doing business are counted and other costs are not. Corporations therefore are only generally finan- cially liable for a proportion of the harmful costs of their activities.

As we shall see, in almost every major case of corporate crime corporations escape liability for the burden of the social costs: costs that always fall on the most vulnerable. In the case of the Bhopal disaster, tens of thousands of people continue to pay huge medical costs, or simply suffer without treatment, precisely because the owners of the operating company first Union Carbide and latterly Dow Chemicals have been shielded from pay- ing those costs Pearce and Tombs, As this book will show, the social costs of corporate activity far outweigh the claimed benefits.

Put this way, corporations do not look particularly efficient, or even particularly effective, in the organisation of our lives and our life chances. Yet we stress that this does not necessar- ily mean that this relatively small group of actors actually controls the global economy.

And the figures presented above, when taken at face value alone, appear to indicate precisely this. And yet, typically, it is in periods of social and economic crisis that the real basis of the relationship between corporations and states is revealed Whyte, It was a moment at which the illusion of the formal separation of bureaucratic power between states and corporations was shattered as gov- ernments around the globe scrambled to save their banks. Thus the nation state is neither peculiarly constrained Somerville, ; Weiss, , nor is the logic of deregulation a necessity Mosley, in the international political economy.

From this perspective, the increasing social and economic power of corporations may not be at the expense of, but may actually augment, the power of particular national and local states Pearce and Tombs, But in what follows, we ask readers to bear in mind two points that follow.

First, corporate crime and harm often occur with the permission of gov- ernments, or even at the behest of governments. Thus, second, we must interrogate carefully the political and regulatory strategies of governments and their institu- tions when they present themselves as powerless to pre- vent corporate crime and harm.

Actually the idea of the autonomous corporation is much better understood as a kind of abstracted wishful thinking on the part of neo-liberal theorists rather than anything that conforms to reality. After all, central to neo-liberal theory is the proposition not merely that that corporations are more autonomous, but that they should be more autonomous. The flip side of this proposal is the key trope in neo-liberal theory that the role of the state should be restricted.

State activity should aim to achieve stable prices, to restrict the money supply and to remove barriers to competition in labour, product and financial markets, hence encourag- ing innovation cf. Clarke, If and when inefficient decisions are made, then they are either evaded by private actors who write efficient contrary arrangements into their agreements or they are legislatively preempted by political pressure from interest groups acting in a generally economi- cally rational manner Posner, —91; and, with some qualification, Coase, It is the resolution of such issues as disputes between individuals and corporate persons that from a neo-liberal point of view allows corporations to be encouraged to be socially responsi- ble.

This process also allows corporations to exist relatively autonomously from state interference. In general, according to this neo-liberal view, too much state intervention in the economy poses tremendous dangers to the working of market rationality. For, although it is argued state activities are usually justified as being necessary to correct prob- lems of resource allocation due to market failure, states normally allocate resources in a socially inefficient way.

As we have seen in the previous discussion, from a neo-liberal perspective, markets are capable of self-correction, even in cases where corporations generate large-scale social harms and crimes. Thus, UK train operators are completely dependent upon government subsidies. Numerous sectors such as the care sector, health and pharmaceuticals, private security, the arms industry, educa- tional suppliers and publishers etc. The construction indus- try enjoys remarkably high levels of public subsidy.

As Mair and Jones forthcoming, have noted, the Private Finance Initiative PFI , now institutionalised in various forms across national and local government, has valorised a state distribu- tion from public to private that massively subsidises construc- tion firms, guaranteeing returns on capital that are often over 60 per cent.

The energy sector is also hugely subsidised by the UK government. This extends to virtu- ally every area of social policy, the delivery of much of which has been handed over to private corporations, usually in the name of greater efficiency, but in fact representing massive, and increasing, levels of corporate welfare Farnsworth, Even our argument to this point shows that claims about economic efficiency are both practically and theoretically impossible to sustain.

As this book will show, corporations are at best socially inef- ficient, and at worst systemically anti-social. Throughout the following chapters, we shall return con- sistently to the regulatory relationship between states and cor- porations that is ever-present in capitalist social orders, and we shall subject it to various forms of critique.

Across four Conservative governments between and , literally hundreds of publicly owned companies were sold into private hands. In Britain during this period the following industries were all privatised: aerospace; telecom- munications; gas, electricity and water supply; shipbuild- ing; freight and ports; coal; railways; and atomic energy. The empirical evidence suggests that the period spanned by the Conservative gov- ernments was a complex, and at times incoherent, era of re- regulation; that said, the idea of deregulation, itself claimed as economically determined by the seemingly naturally unfolding of neo-liberalism-as-globalisation, strengthened during this period.

The arrangements involved in transfers of ownership from the state — which had created new and significant popular and political dependencies upon private capital, given the centrality of the goods and services now in private hands — continued to become more opaque.

Notable here was a series of measures rolled out to attract private capital via opaque contractual relationships into the public sector, fur- ther intertwining state and private corporate activities. These measures are, again, best characterised as forms of re-regulation, albeit often in the name of deregulation. Many such arrangements remained relatively invisible, while some achieved prominence through controversy. Of course, PFIs are subject to regulation through contract.

Most commonly regulation and contracts are used in tandem. All are accompanied by the creation and re- creation of immensely complex regulatory regimes. Any simplistic dichotomy between an intervention- ist state via regulation on the one hand and a laissez-faire state with an impetus towards deregulation on the other, is ultimately unhelpful when analysing corporate crime and harm.

A key point for us is not that the state is anti-statist, but that it represents itself as such Hall, Thus we have to differentiate between state retreat as a real out- come of neo-liberalism and anti-statism as a hegemonic device ibid. In this context, it is clear that the period of the past 30 years or so is not accurately characterised simply as an era of deregulation. This point can be illustrated with reference to two observable policy developments in regula- tory policy, via criminal or administrative law or both.

First, rather than acting to control or restrict markets, there emerged in this period regulatory forms that promoted market activity.

Second, there has been, at times, a considerable regula- tory effort aimed at controlling the excesses of capital accu- mulation. In the sphere of environmental crime, saw the establishment of a new, and ultimately ineffective, Environment Agency. In the sphere of health and safety, the second Thatcher government ultimately retreated from a full-scale deregulatory assault Tombs, ; moreover, the last 30 years have seen changing fortunes in the context of health and safety regulation, albeit one best character- ised by a long-term and, recently, accelerated emasculation of the Health and Safety Executive HSE as the key regu- lator in this area Tombs and Whyte, a , while there have also emerged some symbols of criminalisation, not least the new legislation on Corporate Manslaughter, enacted in April Contrary to this view, as we shall argue throughout this text, if corpora- tions exist with some degree of autonomy from states, this autonomy can never be complete, since it is states — through regulation — that play a crucial role in reproducing the social conditions necessary for corporations to survive and thrive.

Although we live in a global economic system that is dominated by large corporations, our concern in this book is with the general rules and practices that shape all corpora- tions. It is in the next chapter Chapter 2 that we will turn to survey some of the harms committed by corporations in more detail. And it is in this chapter that we will discover that the sheer scale and reach of the harms and the crimes of corporations inevitably raises questions about the benefits that corporations really bring us.

The central argument of this book is that it is the inter- dependence between states and corporations — in contrast to the dominant and prevalent claim that these entities exist in relations of antagonistic, external independence — that must be the starting point for understanding the production of corporate crime and harm.

More specifically, throughout the book, it will be argued that the corporation is an essential part of the infrastructure of the modern capitalist state, albeit that its place and roles therein are constantly in flux.

Rather than viewing power as somehow distributed in a zero-sum fashion between states or corporations — as many of the cruder exponents of economic globalisation theses have done — we argue that it is more accurate empirically, and certainly more plausible theoretically, to understand the relationships between corporations and states as much more complex and often symbiotic. This understanding leads us, in Chapter 6, to offer some observations — both practical and utopian — on how we might reshape the corporate economy in ways that can control the production of corporate crimes and harms.

When most of us contemplate the presence of corpora- tions in our lives, we probably do not think of their morality or their criminality. As we indicated in the opening para- graphs of this chapter, one of the consequences of the steady growth of corporate power throughout the twentieth and twenty-first centuries is that we now rely on corporations in virtually every area of our lives.

In short, corpo- rations are being expected to play even more central a role shaping our lives and our life chances, and indeed the future chances of survival of human life. And it is only by recognising the conditions of the socio- historical construction of the corporation, which follows a rather strange route to its present form as a legal and politi- cal entity, that we can realise that there is nothing natural or permanent about its presence in our lives.

It is therefore still possible, and, as we will argue in this book, necessary, to begin to imagine a world without corporations.

This argu- ment becomes irresistible when, as we see in the next chap- ter, we begin to analyse the real effects of the corporation. We will briefly introduce three examples of the stories as a frame for the historical discussion that follows.

First, two incidents in Bangladeshi textiles factories resulted in the mass killing of workers. On 24 November , a fire at the Tazreen Fashions factory in Dhaka killed workers. A preliminary report by the government offi- cial leading the inquiry into the fire has provided evidence of gross negligence by the factory owners Manik and Yardley, This was hardly an isolated tragedy. Five months to the day after the Tazreen fire, on 24 April , at least 1, workers were killed in the collapse of Rana Plaza, also in Dhaka, a building housing mostly garment factories.

Yet the sub-contracted relationships with the factory owners, and the complexity of global supply chains, mean that those compa- nies, the primary beneficiaries of cheap and often dangerous working conditions, are not likely to be held to account for those deaths. The corporate customer is invariably the prin- cipal actor in a supply chain and as such is able to dictate the conditions of production, though contract, within those chains.

Thus the supply chain is — among other things — a technique for contracting out crime, passing down the ever- increasing likelihood of, or even compulsion for, illegality. This is achieved through sub-contracted relationships that impose ever tighter margins down that supply chain, so that for some organisations, at some points in the chain, the only way of meeting their contractual obligations whilst still making a profit is to break the law.

Tying down suppliers via contracts in order to maximise profitability at the top end of the supply chain also builds in conditions of plausible deniability: if something goes wrong, both the explanation of the cause and the blame can be passed down the supply chain Ben-Achour, ; see also Sethi, Second, in January a series of household food retail- ers and manufacturers across the UK were found to be sell- ing horse meat labelled as beef in a wide range of products sold.

BBC, In this statement David Heath is clearly attempting to estab- lish in the public debate a strict separation between legiti- mate British retailers, processors and producers and the criminal elements that exist further down the supply chain. Yet as we have argued, it is difficult to defend a clear-cut separation, legally or morally. Once again, the supply chain appears to have been a convenient narrative for those who would seek to deflect responsibility from the corporations that stand at the top of the chain.

In fact, in this case, none of the companies involved in the supply chain were prosecuted Smyth, The effect of manipulat- ing the LIBOR was to increase the cost of personal, busi- ness and state borrowing across the board — thus placing a premium on everything from personal loans and mort- gages to the costs of building hospitals through the PFI Pollock and Price, Meanwhile, despite at times tough rhetoric, none of the major political parties in the UK seemed even close either to proposing more effective regulation or to supporting criminal justice responses to clear evidence of a range of offences.

Indeed, the one high-profile criminal case during this period was, typically, against a sole, rogue trader. First, they illustrate how cases from very different economic sectors often manifest them- selves in very local ways but on further scrutiny require explanation in ways that span the globe; second, that the corporate production of harm and law-breaking are rou- tine outcomes of the way that business is conducted; and, third, that corporate activities can have very serious social consequences, although these are not always immediately discernible.

Moreover, these examples also indicate that corporate crimes and harms emerge in a variety of ways. Some emerge as a result of intentional, well-planned and systematic deception; others are much more likely to result from negligence and carelessness. For example, breaches of health and safety law or building regulations, even if they are criminal offences, and even if they are also products of the prioritisation of profit over worker safety, are rarely intended to cause death, injury or illness.

Some offences are rendered possible by the multinational structure of the company, such as transfer pricing, in order to move assets from one part of a company in a high tax jurisdiction to another part of the same company that is registered in a lower tax jurisdiction.

Moreover, some corporate crimes and harms have both a wide range and large number of vic- tims, including employees loss of jobs , governments loss of taxation revenue and investors loss of returns. In the Rana Plaza case, the owner of the building has been charged with murder and in the Tazreen case, the owner of the factory has been charged with cul- pable homicide although none of the global retailers have been implicated in the proceedings ; in the UK horsemeat case, two slaughterhouse owners have been charged with beaches of food regulations; and in the case of LIBOR, multi-million fines have been imposed on several banks, and the prosecution of a number of bank employees is cur- rently underway.

Yet, for reasons we will explore in much more detail in Chapter 5 of this book, the various forms of social harm that we explore in this chapter are generally not constructed or represented as crimes nor corporate crimes.

The bulk of social harms that are produced by corporations, even if they are theoretically punishable in law are rarely, in practice, crimi- nalised. In this section we provide some indication of the scale of corporate harm in the UK, organised around a selection of exemplar categories: corporate theft and fraud, corporate crimes against consumers, corporate crimes against workers and corporate crimes against the environment. We describe those as crimes in the knowledge that a variety of social pro- cesses render the majority of the cases immune from criminal prosecution, and indeed from any legal process.

We also wish to emphasis that the empirical detail of four types of corporate crime that we set out in the follow- ing sections is presented to demonstrate the routine and pervasive character of corporate crime.

This is important since the few cases of corporate crime that ever reach the headlines tend to reflect very extreme cases in which the perpetrator is known, and where there is an attempt to explain the context, circumstances and consequences sur- rounding one specific incident.

Indeed, there is a similar focus in public debate of a relatively small number of cases that obscure the everyday incidence of corporate crime. But it is to say that, in order to build a more complete picture of the scale of corporate harm, we should seek to examine the scale and nature of routine, everyday harm.

This is what we seek to do in the following analysis of categories of corporate crime: financial theft and fraud financial services fraud , crimes against con- sumers food crimes , crimes against workers safety crimes and crimes against the environment air pollution.

Corporate theft and fraud financial services fraud The serious frauds in the banking and finance industry noted earlier in this chapter fit closely into a more general category of corporate theft and fraud that has attracted some academic attention. Enron is perhaps the classic example of the latter and has joined a list of offenders — including Guinness involved in illegal share dealings in the s; see Punch, —80 and BCCI, a global bank that was systematically involved in fraud, money launder- ing and bribery ibid.

The general evidence available to us indicates that corporate financial crime is widespread. Rebovich and Kane have estimated that 37 per cent of the US population have been victims of some form of cor- porate theft or fraud, a figure closely approximated in a later such survey that measured victimisation to various kinds of business frauds Huff et al. But the retail parts of these businesses are far from clean: consumers of financial services firms have been victims of three recent waves of offences in the UK, involving many of the same well-known financial ser- vices companies, since the deregulation of the sector marked, notably, by the Financial Services Act, The first of these — widespread pensions mis-selling — had its origins in the gradual withdrawal of government sup- port for state pension provision, coupled with deregulation of the retail financial services sector in the UK in the latter half of the s.

Pensions providers launched into a hard sell, targeting public-sector workers in well-developed pen- sions programmes, advising many to transfer their contri- butions to private schemes about which they provided false and misleading information.

Less than one in ten pensions companies had complied with legal requirements when originally advising on these pensions transfers Black, The number of victims could be as high as 2.

At the end of the s, an uncannily similar series of frauds began to emerge. But such projections often proved to be false. The risk entailed in such products — which were cheaper for home- buyers — assumed that interest would be offset by the rise in value of the investment.

A very large proportion of those mortgages were deceptively sold without their purchasers being made aware of the risk they were taking. Again, the companies mired in the endowment mortgages episode were virtually all of the main high street providers of financial services.

It claimed that this led to 75 per cent of rejected claims being re-adjudicated in favour of the customer BBC, The same pattern that characterised the pensions and endowment mortgage frauds was then repeated in the personal Payment Protection Insurance PPI policies that were widely sold at the start of this century. Financial services firms sold customers who had taken out financial products such as mort- gages, credit cards or loans a form of insurance in the event of not being able to make payments.

Meanwhile, only in did the trade-body — the British Bankers Association — abandon a legal challenge to an FSA ruling on compensating victims.

The finance sector is therefore characterised by an ongoing and seemingly endless litany of corporate crimes that target victims on a gargantuan scale. One such instance emerged in December , when the French government recommended that women who had received breast implants from the manufacturer Poly Implant Prothese PIP should have them removed — they had been filled with industrial rather than approved medi- cal silicone.

The implants had been produced for 12 years, and some , were sold across 65 countries in Europe and South America Sage, Another category of crimes against consumers — to which many of us have likely been victimised — are those involv- ing corporate price fixing, the illegal agreement between parties to keep prices artificially high.

Illegal price fixing — for example, in the electrical goods, car and construction sectors — has become routine activity for many of the larg- est and most respected corporations Slapper and Tombs, ; Croall, We now discuss in greater detail the scale of corpo- rate food poisoning in the UK.

Food poisoning cases are known to have lasting and complex effects on health. Even these estimates of food-related illness are likely to understate the scale of the problem Food Standards Agency, n.

In other words, two-thirds of chicken sold in retail outlets contained a pathogen that is the major source of hospitalisation from food poisoning in the UK. Now, it is certainly the case that campylobacter and many other bacteria carried in foodstuffs can be killed through thorough cooking. But this is rather to miss the point. More relevant for us is that the prevalence of such bacteria, for example in chicken, is so widespread when the conditions under which its spread can be eradicated are well known, and amount to little more than meeting basic standards of hygiene in poultry production and processing.

The preva- lence of the bacteria is a consequence of two conscious deci- sions taken in the food retail business, both of which are directly linked to the maximisation of profitability: one is the driving down of costs to undercut competitors, not least amongst the handful of supermarkets that dominate the UK retail food sector see Chapter 1 ; another is the complex line of sub-contracting that makes effective self-regulation virtu- ally impossible even were it desirable on the part of industry Lawrence et al.

Overall, in , there were 83 general outbreaks of food- borne infectious disease in England and Wales reported to the Health Protection Agency, an increase on the 63 in the previous year Health Protection Agency, And those are crimes that victimise all of us on a routine basis. Crimes against workers safety crimes Our examples from the Bangladeshi and Pakistani textiles industries fit into a broader category involving offences that arise directly from the employment relationship.

These include cases of sexual and racial discrimination, violations of wage laws, of rights to organise and take industrial action, and various occupational health and safety offences. It is in this case that we find examples of three types of offences against workers — involving breaches of data protection, workplace safety and human rights laws, respectively. If we turn to focus upon occupational health and safety harms we find that the scale of these is very significant indeed — albeit, as with much corporate harm, obscured.

But the under-estimation does not stop there. Also reportable to HSE are deaths to members of the public that arise out of work activity. Still, the under-estimation does not stop at this point.

As HSE now openly acknowledges, there are significant catego- ries of deaths — at sea and associated with air travel, for exam- ple — that are occupational but recorded by other regulatory agencies. But by far the biggest omission are the deaths of those who die whilst driving as a normal part of their work.

This omits some —1, occupational deaths per annum because such deaths are recorded as road traffic rather than occupational fatalities. Still, these additions do not capture the full scale of the problem of work-related deaths. And long-term research by the Hazards movement, drawing upon a range of estimates derived from studies of occupational and environmental cancers, of heart-disease deaths that have a work-related cause, as well as estimates of other diseases to which work can be a contributory cause, produces a lower- end estimate of up to 50, deaths from work-related illness in the UK each year, or around four times the HSE estimate Palmer, This annual total of vicitmisation that we have set out here ranks highly in comparison with virtually all other recorded causes of premature death in the UK Rogers, And the overwhelming majority of deaths caused by work occur in the context of corporations or profit-making business activities of some type.

Crimes against the environment air pollution A final category of crimes and harms are those that harm us by damaging our natural environment.

These include: illegal emissions to air, water and land; hazardous waste dumping; and illegal manufacturing practices. Air, land and water pol- lutants are a further key cause of death and disease; the focus here is on exposure to airborne pollutants. In global terms, a recent estimate of the scale of death and disease as a result of outdoor air pollution concluded that ambient air pollution causes about , 1.

What is both notable and depressing, though, is how unusual is this commitment, and the issues that follow from it. Why notable? Many of the reasons for the relative silencing of these arguments and commitments are set out in this text, but there are perhaps a number of additional points that might be made here. By implication, social theory and social analysis were collaborative enterprises.

However passionately a position was held, there existed a real possibility of its modification, its development, its abandonment, and, sometimes, the development of surprising, and non-eclectic, syntheses. A disturbing aspect of current academic practice is that differing but rigorous interpretations of the nature of the social world and of theories and theorists are often simply ignored, at times crudely parodied, or simply, and contemptuously, dismissed.

One among a number of experiences of Steve Tombs and myself in this respect is illuminating. First, because within the mass of work that has appeared since, either within or broadly sympathetic to the views of the Oxford School, our own position, developed in those articles, is often simply ignored, at best footnoted and passed over. Curious, second, because although the exchange is often referred to by other commentators on regulation, the position that we developed in those articles is consistently misrepresented, even by those who cite it approvingly!

Thus our argument—that a corporation when acting as a sophisticated amoral calculator is aware of the distinction between long-term and short-term consequences, is sometimes caught within a disabling ideology, sometimes less than competent and, as an organization, is often wrought by conflicts—gets translated into the claim that corporations are coherent organizations with a consensus about goals and means and that as amoral calculators they focus only on immediate consequences, are omniscient and never make mistakes!

Two points follow. First, this is a clear illustration of how deep incommensurabilities are displayed and negotiated, but also how positions can develop or shift in the context of a dialogue. There seems to be little recognition that we were clearly drawing upon the work on hegemony of the Italian Marxist, Antonio Gramsci.