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.

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. 

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