Clarkson: The Rich Get Richer, the Poor Get Prison…

by Steve Tombs, The Open University

… so ran the title of Jeffrey Reiman’s classic criminological text. The dialectic of the process of criminal ‘justice’ was never more aptly summarised – and continues to be evidenced on a daily basis.

Enter Jeremy Clarkson, a man who makes money out of being odious to the point where it is simply not worth bothering to repeat his long list of right-wing tirades – save to note that these can be followed via the columns of The Sunday Times and The Sun, those fine, upstanding examplars of law-abiding private capital that is News International.

But Clarkson’s latest bout of self-publicity does deserve some – brief – attention. Latest viewng figures show BBC’s One Showreaching almost 7 million, prime-time viewers. Being interviewed on the show on the day of the public sector strikes, 30thNovember, Clarkson responded to being asked of his views of the strike thus:

“I’d have them all shot. I would take them outside and execute them in front of their families. I mean, how dare they go on strike when they’ve got these gilt-edged pensions that are going to be guaranteed while the rest of us have to work for a living?”

A minor storm followed. As did a comment from Prime Minister David Cameron:

“That’s obviously a silly thing to say and I’m sure he didn’t mean that. I didn’t see the remark but I’m sure it’s a silly thing to say.”

Clarkson apologised. He continues to draw his salary from our licence fee, reputed to be some £1.2m p.a., not to mention his other income from writing for the Murdoch Mafia, his ‘books’, DVDs, and so on. He is no doubt set to pick up a better pension than the ones public sector workers were trying to defend when he suggested they be executed – Unison estimates the average public service pension to be £7,800 a year.

Contrast this with the two men in their early twenties who used Facebook to urge ‘riots’ in Northwich and Warrington during the August disturbances. Both Jordan Blackshaw and Perry Sutcliffe-Keenan pleaded guilty under sections 44 and 46 of the Serious Crime Act – in essence, intentionally encouraging or assisting an offence – though no disorder in fact ensued in either location.

Just read the charge. On the face of it, it looks equally applicable to Clarkson’s ‘joke’. Yet, unlike Clarkson, an apology was not the end of the matter for the two young men from Cheshire. In fact, they were both jailed for four years. Again not backwards in coming forwards with a comment, Cameron informed The Daily Mail of his rather contrasting views of this particular ‘encouraging’ of an ‘offence’:

“I think it’s right that we should allow the courts to make decisions about sentencing. They decided in that court to send a tough sentence, send a tough message and I think it’s very good that courts are able to do that.”

Two mens’ lives blighted. One man’s Christmas DVD and book sales most likely boosted. And a schizophrenic Prime Minister, notably reticent about his own, youthful, Bullingdon-club high-jinks.

The Rich Get Richer, the Poor Get Prison. Indeed.

Editor’s link for those who missed the story:

Jeremy Clarkson’s ‘execute’ strikers joke sparks 21,000 complaints to BBC

Original article published on 02/12/11 by:

and reproduced here with kind permission from Colin Sumner.

Corporate Killing With Impunity

Steve Tombs

International Centre for Comparative Criminological Research

The Open University

This week saw sentence passed following the eleventh conviction under the Corporate Manslaughter and Corporate Homicide Act, 2007 (CMCHAct). Pyranha Mouldings, a small kayak manufacturer, was fined £200,000 following the death of a worker in 2010. Allan Catterrall had been trapped and died in an industrial oven.

The Act, rolled out across the UK seven years ago to improve accountability for corporate killing, has so far failed dismally to undermine what is essentially corporate impunity for deaths at work. Part of this failure has its roots in the Act itself, namely the exemption guaranteed to senior managers and directors in section 18, titled “No Individual Liability”. Indeed, it was only after this exemption was inserted by the Government during the legislative process that widespread business opposition to the proposed law became muted.

In England and Wales and Northern Ireland, the common law offence of gross negligence manslaughter still exists as a mechanism to hold individuals to account for their part in corporate killing, while in Scotland there is an equivalent common law offence of culpable homicide. However, there is some evidence that one effect of the CMCHAct is that in England and Wales (there have so far been no convictions in Scotland), individual liability has been sacrificed for pursuing corporate liability. In three of the first four convictions (see Table 1), decisions to proceed with corporate manslaughter prosecutions were accompanied by decisions not to proceed with charges against individual directors for the offence of gross negligence manslaughter.

Thus, some legal commentators have already referred to a nascent trend, with the threat of charges against individual directors being the ‘bait’ for a corporate manslaughter charge: ‘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’.

Moreover, further scrutiny of these convictions reveals two additional, key failings of the law.

First, all of the companies successfully prosecuted thus far have been small or medium sized enterprises which could have been successfully prosecuted under the common law of manslaughter (see Table 1). Thus, the large, complexly owned companies for which the new law was ostensibly designed, have so far evaded its reach. Perhaps relatedly, all of the convictions secured to date relate to offences involving a single fatality – while a key intention behind the law was to encompass multiple fatality incidents.

Second, the level of fines passed at sentencing has been relatively low. Following the passage of the CMCHAct, the Sentencing Guidelines Council had issued ‘definitive’ guidance on determining appropriate levels of penalties following successful prosecution under the Act. These guidelines marked ‘a very considerable backstep’ from a [2007] draft guideline, which had proposed that fines should be calculated within a percentage range of company turnover. The ‘definitive’ guidelines removed any link with turnover, with the key rationale for setting the level of fine being the ‘seriousness of the offence’ and factors contributing to this. Calculated in this way, fines should ‘be punitive and sufficient to have an impact on the defendant’, so that the ‘appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds’. In fact, and as Table 1 indicates, only one fine has so far reached this putative minimum – although it should be noted that the fine of £500,000 was imposed upon a company which at the start of the trial was in fact in administration (Sterecycle [Rotherham] Ltd). Interestingly, a recognition of the poverty of current sentencing practice under the Act has prompted a new set of draft guidelines, currently under consideration, in which it is proposed that there be a more explicit link between fines and turnover – although the proposal is focused on larger sized companies, none of which have yet been convicted.

Each year in the UK, up to 50,000 workers die from fatal injuries and work-related illnesses, of which a significant but unknown proportion are likely to be the result of legal breaches by their employers. This annual total ranks highly in comparison with virtually all other recorded causes of premature death in the UK, and dwarfs the just-over 600 ‘conventional’ murders recorded in the most recent figures across the three jurisdictions of the UK. Such observations alone make the rate of convictions under the CMCHAct look like a spectacular failure on the part of police forces and the Crown Prosecution Service. The CMCHAct is beginning to look very much like another weak, and at best, symbolic attempt to hold to account companies which kill – one which barely dents the impunity which corporations continue to enjoy as they put profits before human lives.

Table 1. Convictions under the Corporate Manslaughter and Corporate Homicide Act, 2007

Table 1 Convictions under the Corporate Manslaughter and Corporate Homicide Act 2007

What can visual attention research tell us about the reliability of eyewitness evidence?

Gemma Briggs and Louise Westmarland

International Centre for Comparative Criminological Research

The Open University

Most people probably think that they would be able to provide a good account of what happened if they witnessed a serious crime. Being able to identify the person who attacked them, for example, from a line up, might seem to be a fairly straightforward matter. However, a recent report from a committee tasked with assessing the factors affecting eyewitness testimony, recommended that all law enforcement agencies should ‘…provide their [personnel] with training on vision and memory and the variables that affect them’. Whilst it may appear to be common sense that research-based policing practice should be the norm, it is evident that this is not always the case. Why, then, has this recommendation been made and how could such training help to reduce erroneous convictions?

Fredrik Fasting Torgersen

Fredrik Fasting Torgersen in the centre of a police lineup

Initiatives such as the Innocence Project highlight an alarmingly high number of cases where individuals have been convicted of crimes they did not commit on the basis of eyewitness identification. Whilst advances in forensic techniques, such as DNA testing, can help overturn some such miscarriages of justice, where forensic evidence isn’t available there still remains a tendency for jurors to assume that a confident eyewitness provides reliable evidence (Smith et al, 1989). So how should eyewitness evidence be regarded by jurors? Many researchers would claim that such evidence should be regarded with caution. This is because although police interviewing strategies, used in the UK at least, can help to focus a witness’s account of an event before their evidence is presented in court, the reliance on the witness’s memory remains. An eyewitness to a crime may feel very confident that their recollection of the event represents clearly what happened, regardless of the speed or traumatic nature of the event. They may also feel highly motivated to help the police secure a prosecution.

The desire of a witness to help the police and the confidence with which they present their account of events represent different problems for assessing eyewitness evidence. The police can control so called system variables – the methods and procedures employed to gather information from a witness, such as the cognitive interview and identification line up procedures – yet they can’t control factors such as the impact of stress, anxiety, distance from the perpetrator or the visual conditions at the time of witnessing the crime – the estimator variables (Wells, 1978). This type of ‘noise’ can affect how eyewitnesses process the crime as well as how they later recall the events. For example, an individual who witnesses a street robbery in a dark alley as they walk home from work may experience anxiety at being physically close to the attacker and fear for their own safety when the assailant sees them phoning the police. In these conditions, they may struggle to provide a clear description of the attacker or the sequence of events. Whilst poor lighting could explain the inability to describe the perpetrator’s face, the effect of fear, anxiety and distraction may be less obvious. Afterwards, the witness may feel able to provide an accurate description of the sequence of events and the physique of the attacker, which could potentially help police with their investigation, yet the emotion and distraction they experienced may well have altered their perception of the scene (Easterbrook, 1959). All of these factors, which are outside of the police’s control, are estimator variables.

scared eye

A great deal of research has been conducted on memory for, and recall of, witnessed crimes, demonstrating the constructive nature of memory (Garry et al., 1996), the effect of leading questions (Kassin and Gudjonsson, 2004) and co-witness effects on accounts (Gabbert et al., 2003), as well as the suggestibility of vulnerable witnesses (Henry and Gudjonsson, 2007). This type of research has proven beneficial in controlling some of the system variables which could affect the evidence provided by eye witnesses. However, estimator variables are harder to pin down. Research on visual attention helps to highlight how what we perceive may differ from what is actually presented to us, and that simply looking at a scene doesn’t necessarily equate to seeing all aspects of that scene (Mack and Rock, 1997). The phenomena of change blindness (the inability to detect changes in a scene despite full attention being paid); and inattentional blindness (the inability to detect changes in a scene due to attention being allocated elsewhere, or being overloaded) can both demonstrate how a witness’s perception of an event may be affected, potentially leading to incorrect identifications.

Classic change blindness investigations (e.g. Simons and Levin, 1998) have shown that people can fail to notice a change in the identity of a person they are talking to if their contact with that person is briefly interrupted (e.g. a person ducks behind a counter and a different person then stands back up). If people fail to notice a change in the identity of someone they are talking to, how good are they at noticing changes from the perspective of an onlooker?  Fitzgerald et al. (2014) showed participants a film of an innocent man entering a building. A theft then occurred, and a different (guilty) man left the building. 64% of participants who viewed the film failed to detect the change in identity. They were then shown a 6 person line up which was either target absent (contained the innocent man and 5 fillers) or target present (contained the guilty man and 5 fillers) and asked to rate their confidence in their identification.  The 36% of participants who detected the change reported higher confidence in their identification accuracy than those who demonstrated change blindness, despite their identification accuracy not being significantly greater: those who demonstrated change blindness were more likely to misidentify an innocent filler in the line up (44%) than those who had detected the change (21%), but both groups showed similar rates of correct identifications in the target present line up

In a similar study, Smart et al. (2014) questioned whether expertise could affect change blindness susceptibility and identification accuracy. They showed groups of students and law enforcement officers a video of a staged traffic event, involving a speeding car being stopped by a police officer, during which the identity and clothing of the driver changed. Participants were asked whether they detected a change in identity, a change in clothes or both before viewing a line up containing six people. There were four different versions of the line up available: two where the target was absent (i.e. only innocent fillers were present), one containing driver 1 and another containing driver 2). Results revealed that students and law enforcement officers showed similar levels of change blindness (37.5% and 50.8%, respectively) but that students were significantly more likely to detect both the change in identity and the change in clothing than police officers (22.5% and 1.6% respectively). Further, only 3.3% of police officers detected the change in clothes, compared to 40% of students. Moreover, whilst those who detected the change in identity made more correct identifications than those who did not, police officers were less accurate on the identification task than students and demonstrated a greater likelihood of selecting an innocent person from a target absent line up. Smart et al. claim that their findings demonstrate that everyone is prone to change blindness and the ‘attentional set’ an individual applies to a scene may affect detection of different changes to that scene (e.g. officers were attending more to the driver’s behaviour than his clothing).

If the attentional set, goals and level of arousal of a viewer can affect what they see when witnessing a crime, it is easy to understand how two witnesses can provide different accounts of the same event. When witnessing a crime, an eyewitness isn’t just a passive surveyor of the events – they bring with them their own goals, past experiences and current concerns – all of which can affect what they look at, process, perceive and remember of the event. Given these factors, along with research into memory and identifications, it is crucially important that eyewitness accounts are treated with caution both by the police and jurors at trial. Educating and informing these groups of the potential pitfalls of eyewitness testimony at both the time of witnessing a crime and at police interview can only be a positive thing.