Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 22 January 2013

On paternalism

One of the most frustrating usages for me in the criminalization literature is the reference to paternalism - basically the question of whether or not intervention by the state can be justified against the interests or wishes of the individual to protect them from themselves. The term seems to derive from JS Mill's essay On Liberty and to me it retains a tone of stern Victorian patriarchy which feels out of place in contemporary discussion.

JS Mill: father of paternalism
But I can be more specific about why I find the term annoying. First, as I indicated above the language seems anachronistic. The state is depicted in the  role of the father or head of household who steps in to protect its charges, telling us that the prohibition is for our own good. And in the role of the father, it need not give reasons:  you must do this because I say so. One big problem with this is that it already skews the argument. Like teenagers we want to resist this paternal authority, to try out the forbidden acts for ourselves. And, not surprisingly, like teenagers acting out theorists more often than not decide that paternalism is unjustified. We might also here focus on the question of why law should be coming from the father (with apologies to psychoanalytic theory). One interesting thought experiment here might be to substitute 'maternalism' for paternalism. Instead of the stern distant father telling us that it is for our own good, this might conjure up the image of the ideal mother - caring and loving - and perhaps it might be harder to resist the idea this kind of protection is unjustified. Of course these are stereotypes, but the point is that whether it is father, mother or parent this conjures up an unlikely and outmoded picture of the state that we are, of course, justified in resisting.
Matriarchy and maternalism?

Second, it is not clear what we are talking about when we talk about paternalism. For Mill it was literally a matter of paternalism (or parentalism) - protecting children or those unable to make proper choices for themselves. But then there is slippage. We move from theorists talking about measures to protect the vulnerable, to measures to protect us from ourselves (no consent to assault, no taking drugs and so on), to measures such as the compulsory wearing of seatbelts or state regulation of risky activities. My problem here is that I have difficulty seeing how these very different kind of measures can be lumped together under the heading 'paternalism'. The first, protecting the vulnerable might just fit - though there are lot of issues about what, precisely, amounts to vulnerability in this context. The problem with the second category is that it just seems so individualist, with individual will or choice being the fundamental category - even if it we come down in favour of restriction, it is in the limiting of the will of the individual that must be justified. Freedom is understood as freedom from law, which seems to rule out the possibility that freedom might come through law - or proper consideration of many other relevant factors, like the social costs of certain activities, our mutual interdependence or any sense of the common good.

And when we come to the third category this problem is even more pronounced, in part because it seems to rely on such a sociologically naive concept of risk. In particular, with examples like seatbelts, we probably do not properly know the risks because they are so complex - the speed you drive at, the speed of others, the design of a car, of roads, of emergency response times, the availability of medical care and so on. The function of regulation here is in part to address this complexity and the impossibility of choice. Moreover, talk of paternalism just seems to wrench the whole issue out of any relevant social or political context. What is important here is not just a choice about whether or not to have law (or a criminal law), but also the role of insurance companies, of car manufacturers, of car design, the role of the state in providing health care and so on. This is not to say that we should not question or challenge the use of law or criminal law in these contexts, but only that we need to find an appropriate analytical framework - which is something that paternalism cannot provide.

Thursday, 17 January 2013

On deaths at work

Cutting red tape: good for business?
The recent publication of a report on the incidence of deaths at work and changes in the Health and Safety Executive's policy on workplace  inspections makes particularly grim reading. According to the report, Low Life, there appear to be two major trends. On the one hand there is the well publicized political move to reduce 'red-tape' which makes UK businesses uncompetitive. This includes identifying certain sectors of employment which will be exempted from routine unannounced preventive HSE inspections. These are supposedly low-risk areas of work where inspections are burdensome and costly. All well and good, you might think, but it is the second trend which should pull us up in our tracks. The research demonstrates that the majority of workplace deaths occur in the sectors excluded from preventive inspections. It shows that since March 2011 there have been 258 deaths at work, of which 137 were in precisely those 'so-called' low risk areas of the economy. And this is graphically illustrated the report by the listing, down the right hand side of the page, of the names of those who have died.

Now this clearly raises a large number of important issues: how did the HSE compile its list of 'low risk' sectors? Should this list be changed in the face of the new evidence? Is economic competitiveness to be valued above human life? And what is the real balance between regulation, safety and competitiveness? But it should also make us think about the role of the criminal law in areas such as this.

Breach of health and safety regulations, particularly where leading to accidents or deaths, is a criminal offence - often punished with heavy fines. However, it has long been argued by criminologists that there is a failure to recognize the seriousness of these kinds of breaches of safety regulation and the social harm that they cause. The point is made that there are many more 'accidental' or avoidable deaths at work in any given year than criminal homicides, but that in spite of the, often demonstrably criminal, negligence of certain employers (as recognized in the penal fines) there has been a failure to see these deaths as properly caused by criminal activity. In short, it is argued that they should be classified as a form of criminal homicide.

A significant step towards the recognition of this argument was made with the passing of the Corporate Manslaughter and Homicide Act 2007. This Act created a new offence of corporate manslaughter which could be committed by a corporation which managed its activities in such a way as to "amount to a gross breach of a relevant duty of care owed by the organisation to the deceased".

So here we have one possible answer to the shortfall in inspections and the increased number of deaths at work - the criminal law in the shape of prosecutions under the new Act will step into the breach. But is this happening? Unfortunately there is little evidence to support this. In a written response to a parliamentary question in late 2012, the Attorney General reported that 141 cases had been referred to the CPS as suspected cases of corporate manslaughter, but to date there have been only four successful prosecutions under the new Act (and none in Scotland) - probably in part because the HSE lacks the resources to investigate such deaths, and if they are not carrying out routine inspections will not have accumulated evidence of systematic negligence. 

So what we seem to have is the worst of all possible worlds. The risk of death or serious injury remains high, but the possibility of either prevention (through inspection) or deterrence (through prosecution and punishment) remains low. Short term political expediency is clearly being valued above human life. The red tape that is cut may be stained with blood.