Corporate Manslaughter and Regulatory Reform

P. Almond

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137296276
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides an account of the international emergence of corporate manslaughter offences to criminalise deaths in the workplace during the last twenty years, identifying the limitations of health and safety regulation that have prompted this development.

1

The Shift from ‘Regulation’ to ‘Crime’

On the afternoon of Friday, 5 September 2008, Alexander Wright, a 27-year-old junior geotechnical engineer, was collecting soil samples at a building site in Gloucestershire, UK. He was working alone in driving rain in a specially dug trench approximately four metres deep, which was not supported on either side by timber buttressing. Approximately 15 minutes later, the sides of the trench collapsed inwards, burying him under falling soil. Although buried over his head, he was able to call for help, and despite the efforts of those on site to dig him free, mud continued to fall into the trench faster than it could be dug out and he died of traumatic asphyxia several minutes later. An investigation established that Wright’s employer, Cotswold Geotechnical Holdings Plc., had disregarded industry guidance and concerns raised by employees and regulators in the past about safe trench-work, had failed to provide adequate training to employees about the hazards involved in this sort of operation, and had knowingly exposed Alexander Wright to a wholly unsafe system of work. This was an extremely serious, entirely avoidable, and highly culpable example of a work-related death.

Quite apart from being a truly dreadful way to die, and a tragedy for the victim and his family, this incident came to acquire legal significance as the first case in which the offence of Corporate Manslaughter, which became law in 2007, was used to hold a corporate body criminally liable for the death of an employee.¹ Cotswold Geotechnical Holdings was convicted of manslaughter in February 2011 and sentenced to pay a fine of £385,000. This case was important as it finally implemented a piece of legislation that had been on the statute books for several years without being used and that represented the culmination of a lengthy reform process prior to that. The verdict established a precedent for the terms of the new offence and signalled that the relationship between corporate bodies and the criminal law had changed. The Corporate Manslaughter and Corporate Homicide Act 2007 was introduced into English law as a means of extending the censure associated with a serious homicide offence to corporate bodies which kill and of providing a more effective means of constructing corporate liability. It is perhaps the most clear and explicit example of a shift towards the extension of the criminal law into areas previously viewed as ‘regulatory’ in nature that has been seen in many national jurisdictions. Work-related deaths have increasingly come to constitute a recognised social problem and have prompted official responses that are framed in terms of the criminal law, and, in the UK, the case of Alexander Wright constituted an important step in this process. This chapter will begin by defining the parameters of the problem of work-related death, before moving on to measure the extent of this problem and to explain why it is an issue of such public importance. Once this has been done, the law reform process in the UK will be examined, first by looking at the existing enforcement practices for work-related deaths and then by exploring the new corporate manslaughter offence and the changes to the law that this has brought.

Defining the problem of work-related deaths

This book seeks to explain legal responses to deaths arising from safety incidents that occur as a result of the actions of a corporation, business, or other organisational entity. These cases constitute a subsection of the total number of injuries occurring as a result of ‘workplace accidents’ or ‘safety crimes’ (Tombs and Whyte 2007). The defining feature for the purposes of this investigation is the fact of death, which is central to the construction of the legal category of manslaughter, and so our focus necessarily centres on ‘one statistically minor dimension of a much more complex problem’ (Gobert 2008: 414). By referring to ‘work-related’ deaths, it is intended that all workplaces be included, not just the manufacturing context as might be implied by terms like ‘industrial accident’. Additionally, while these deaths are often referred to as ‘occupational’ fatalities, only a proportion of them occur in the course of the victim’s employment. Many more involve members of the public and individuals who interact with corporations outside of their employment; for example, pollution resulting from the Bhopal disaster killed many more people living near the Union Carbide plant than the explosion killed employees (Sharma 2005), and most of the victims of the ‘Herald of Free Enterprise’ sinking were passengers (Wells 2001). The term ‘occupational fatality’ also carries an unhelpful connotation of ‘acceptable’ risk; an ‘occupational hazard’ is, in common parlance, something we expect to face when we go to work. In contrast, most work-related deaths result from unacceptable risks which victims do not accept as a normal condition of employment. ‘Work-related fatality’ is the standard term utilised by the UK Health and Safety Executive (HSE), among other official bodies (Almond 2008), and this category incorporates the deaths of both employees and members of the public when they arise via organisational activity.

The effect of everyday language is even more pronounced in relation to the use of the term ‘accident’, which is critiqued effectively by Tombs and Whyte, who point out that describing work-related deaths as accidents implies that they are ‘unknowable and unpreventable, despite the fact that any examination of a range of incidents reveals common, systematic, foreseeable and eminently preventable causes’ (2007: 72). Even ‘accidents’ within complex systems have discernible causes that allow for the attribution of causal responsibility (Perrow 1984); questions of liability should not be precluded via the definition of an event as accidental. The terminology to be used in this book (‘work-related death’) is intended to encapsulate the contextual variety and normative significance of these cases. A work-related death involves a worker (employee, self-employed, or other person engaged in work) or member of the public who is killed as a result of an event which has arisen out of or in connection with work activity, whether or not they are at work themselves. The term ‘death’ is preferred to fatality in order to avoid the implication of inadvertence attaching to the latter term.² Conversely, the term also avoids prejudging the issue of criminality (unlike ‘safety crime’; Tombs and Whyte 2007: 88), thereby avoiding charges of ‘moral entrepreneurship’ (Tappan 1947). That said, the definitions of crime and non-crime drawn in this context should not be accepted unquestioningly; it may be appropriate to class work-related deaths as crimes once responsibility for them is identified, but when describing the pre-legal fact of death, we need a terminology which avoids predetermining as well as dismissing the possibility of criminality.

Measuring the problem of work-related deaths

In order to understand the importance of the issue of work-related death, it is important to gauge how many fatalities of this sort actually occur. Attempting to do so illustrates three key points: the sheer volume of harm that occurs as a result of corporate behaviour, the difficulty of measuring this harm, and the key role that statistics play in redefining the issue of work-related death in narrow, technical terms. The statistical information allows us to obtain a partial understanding of social phenomena, but it is also socially constructed; as such, we can also learn about institutional decisions regarding inclusion that set parameters on the issue (Kitsuse and Cicourel 1963). The information made available by Eurostat, the Statistical Office of the European Union (EU), indicates that in 2007 (the last year for which full figures are available) there were 5785 deaths at work across the 27 member states of the EU, or approximately 3.5 deaths per 100,000 workers (Eurostat 2010a: 347). Eurostat’s adjusted incidence rate seeks to iron out inconsistencies within the data to provide a nationally comparable rate of work-related deaths by proportionally weighting the national figures to offset the statistical impact of high-risk industries (as such, these adjusted rates vary considerably from the actual rates). This suggests that, against an adjusted rate of fatal ‘accident’ of 81 per 100,000 workers across the 27 EU member states as a whole, states such as Slovenia (149 per 100,000), Lithuania (117), and Sweden (115) stand out as having particularly high fatality rates, while others, including Luxembourg (37 per 100,000), France (50), and Italy (58), have comparatively low rates. The UK stands exactly on the EU mean rate (81), while the rate for Germany is somewhat higher (95) and for Spain somewhat lower (65).

The difficulties in drawing clear conclusions from these adjusted incidence rates are illustrated by the fact that France, Italy, and Spain have some of the lowest adjusted ‘rates’ of death at work but comparatively high numbers of deaths (395 in France and 455 in Italy, as compared to 169 in the UK). Another comparison is revealing; Germany and Sweden’s high incidence rates for work-related fatalities are offset by relatively low incidence rates of serious non-fatal injuries at work (66 and 64 per 100,000 respectively, against an EU average of 76; Eurostat 2010a: 347). While the UK’s rate of 75 serious non-fatal injuries is again close to the mean, many of the highest incidence rates of injury are found in the states of the former eastern Europe (such as Estonia, 120; Lithuania, 101; Romania, 94). This variance between fatal and non-fatal incidence patterns suggests that much of the variation in national work-related death rates is a result of different patterns of coverage, reporting, and inclusion in different countries, a conclusion borne out by the rate of divergence (66%) between actual and estimated fatality rates across western Europe (Hämäläinen et al. 2009: 129).

It must be noted that these data are by no means complete. For instance, the EU’s incidence rates include only ‘core’ industries because statistics for other industrial and employment sectors are not measured reliably or consistently across all member states;³ this rules out public sector workers, mining and quarrying, and some aspects of transportation (EUROSTAT 2001: 26), as the UK and Ireland do not record road traffic incidents as part of their work-related fatality data (they fall under the responsibility of a different domestic recording agency). Further, these statistics do not necessarily include the self-employed, or fatalities to workers while they are working outside the physical confines of the workplace. Finally, some jurisdictions have narrow definitional limits on when a fatality will count as ‘work-related’; the Netherlands requires that death must occur the same day as the initial incident and Germany within 30 days, while the standard time limit is between one and one-and-a-half years (Eurostat 2010b). The two main omissions from these fatality rates are deaths from illness and deaths of nonemployees. A 2007 Labour Force Survey carried out on behalf of the EU found that 8.6% of workers (approximately 20 million people) reported having suffered some form of work-related ill health in the preceding 12 months (Eurostat 2009). The number of deaths resulting from work-related ill health within Western Europe is estimated to be as high as 139,519 per annum (2002 figures; Hämäläinen et al. 2009: 130). Around half of these deaths are caused by cancers contracted via work.

In the USA, the Occupational Safety and Health Administration’s (OSHA) Census of Fatal Occupational Injuries placed the number of fatal work injuries for 2008 at 5214, or 3.7 deaths per 100,000 workers (OSHA 2010). Unlike the data for most of Europe, this figure includes deaths in road traffic incidents while working, which account for 23% of the total fatality rate, but (like the European data) does not include either fatal work-related illnesses or deaths to non-workers. In Canada, there were 1036 work-related deaths (NWISP 2009), and in Australia, 444 (286 ‘working’ fatalities, 117 out-of-work, and 41 public or bystander fatalities; Safe Work Australia 2011). The latter figure incorporates both road deaths while working and those occurring while commuting to and from work. Japan registered 1268 work-related deaths in 2008 (JISHA 2010). Elsewhere, it is necessary to rely on estimates extrapolated from data reported to the International Labour Organisation (ILO) and calculated according to demographic information by Hämäläinen et al. (2009). While the ILO recorded 18,067 fatal occupational ‘accidents’ in 2003, the actual number is estimated to be as high as 357,948, with a further 1.95 million deaths from work-related ill health (Hämäläinen et al. 2009: 129). Of these work-related deaths, the vast majority are accounted for by the developing world, with China (97,248 accidents and 332,454 due to ill health) and India (46,928 accidents and 355,863 due to ill health) featuring prominently. Africa as a whole is thought to account for over 470,000 work-related deaths each year. While these are estimates only, they hint at the true global scale of work-related risk-taking. It must be borne in mind, therefore, that the category of work-related deaths is much broader than the published ‘accident’ rates imply.

Perhaps just as important for the purposes of this book is the exclusion of non-workers from the fatality statistics. The main reason for this, apart from the narrowing effect of the EU’s policy focus on the harmonisation of ‘employment’ rights, is that there is little comparable data on deaths of non-workers resulting from work-related activities (Eurostat 2001: 13); it is therefore impossible to accurately gauge the true number of victims of work-related activities. At this point it becomes relevant to look to national statistics for the UK, where the RIDDOR reporting scheme requires that the HSE record the deaths of non-workers resulting from work activities.⁴ The statistics put the number of work-related fatalities per year at 151 for workers and 393 for members of the public; again, these are partial figures, omitting deaths reportable to other government agencies (such as transport deaths and those occurring in some specific industry sectors that have their own regulators; HSE 2010a). They are also reliant on the classification and reporting of deaths as ‘work-related’, which can be an inconsistent process in practice because it relies heavily on the judgements of actors such as coroners and doctors in linking the outcome to the initial cause. Tombs and Whyte (2007: 47) estimate that a more realistic rate of work-related deaths per year for the UK might be 1600–1700, based upon the RIDDOR reporting rates, death rates for excluded industries, and the estimated number of work-related road deaths each year. To this must be added the estimated annual 20,778 deaths from work-related ill health in the UK (Hämäläinen et al. 2009: 137), increasing the total even further. What this means is that work-related deaths must be considered, by any calculation, a significant social problem that merits regulation in the public interest; the level of harm that is inflicted via workplace safety failures also brings important justice considerations into play.

The public importance of work-related deaths

Work-related disasters have constituted some of the most harmful peacetime events resulting from human activity during the last 30 years. They are ‘public’ events, in that they go beyond the confines of the workplace and cause death and injury to members of the wider community. They are also avoidable: sloppy oversight, poor maintenance, failures to invest in safety precautions, and the neglect of basic procedures are all common contributing factors in work-related death cases (Tombs and Whyte 2007; Wells 2001). Steve Tombs has argued for the need to conceptualise deaths in this context as ‘criminal’, and to recognise that they are ‘inflicted’ and do not occur spontaneously (2004; also Slapper 1999; Tombs and Whyte 2007). Like other harmful social events, fatal safety incidents also impact on the public and shape legal and political debates about risk, in addition to the serious consequences they bring for the victims they directly affect (Clarkson 2008; Gobert 2005; Haines 1997; Snell and Tombs 2011; Tombs and Whyte 2007; Wells 2001). Research into public attitudes towards crime has demonstrated that a special significance is attributed to events which cause death (Almond 2009a; Hansel 1987; Warr 1989). O’Connell and Whelan suggest that the perceived seriousness of fatal offences demonstrates that the ‘individualized violation . . . of a person’ involved is offensive to common standards of behaviour (1996: 308). The same is true of safety incidents; death is important in determining the seriousness of an event, and multiple fatalities are viewed as particularly serious (Almond 2008; Cullen et al. 1982; Rosenmerkel 2001).

The fact of victimisation in work-related death cases demonstrates the costs associated with negligent behaviour and establishes a ‘prima facie’ reason for intervention (Haines 1997: 41; Tombs 2004). But work-related deaths are also ‘public’ incidents which transcend their immediate consequences because, by laying bare the existence of deep-rooted social problems, they make hitherto unseen risks ‘come to life’ (Hutter and Lloyd-Bostock 1990: 418). Psychologists have identified the capacity of harmful events to act as signals of wider danger, particularly where they involve unknown hazards or catastrophic potential consequences (‘dread risk’; Breakwell 2007: Ch. 7; Slovic 1987; Slovic et al. 1979). An example of this would be the explosion at the Chernobyl nuclear power plant in the Ukraine in 1986, which resulted in thousands of deaths, widespread ill health, and vast environmental damage. This event fundamentally changed public perceptions of nuclear power because it brought into focus the harm potential of the nuclear industry; similar effects have emerged following the meltdown at Japan’s Fukushima nuclear power plant in 2011. Much contemporary political debate about nuclear power is shaped by Chernobyl’s legacy, and it is still perceived as a disproportionately risky technology (Breakwell 2007: 188–190; Pidgeon et al. 2008). Events that ‘cross the factory fence’ (Tombs and Whyte 2010: 49) can have consequences reaching far beyond their immediate context, acting as ‘signal incidents’ that indicate an ‘absent, weakened or fragile local social order’ (Innes 2004: 341), making risks visible, and altering the way that recipients of the signal respond to them.

As well as constituting problematic social events, there are other reasons why work-related deaths must face intervention by the law. Such deaths affect many people, and so may be regarded as an issue of ‘social’ justice, while their tendency to affect the vulnerable means that they also have a strong social ‘justice’ component. Framing work-related deaths as public issues in terms of their psychological and social impacts may suggest that the concern is exclusively with disasters, but while ‘big cases’ grab the attention (Almond 2008; Wells 2001), the majority of work-related deaths do not take this form. HSE estimated that 23% of workplace deaths result from falls from heights, making this the most common single cause of work-related death, ahead of strikes by moving or falling objects (16%) and vehicles (14%), contact with moving machinery (11%), and crush injuries (10%).⁵ These trends carry through into the causes of non-fatal injuries as well; 38% of reported major non-fatal injuries result from slips, trips, and falls at work, while another 37% of three-day injuries result from manual handling activities (a trend echoed by Eurostat 2009). The true paradigm case of work-related death, then, is that of an individual who is killed while carrying out an ‘ordinary’ activity which has an extraordinary (but perhaps not unforeseen) consequence. And while arguments for regulation are made most explicit by disaster cases, the need for regulation is most acute where the risk factors involved are ‘routinised’ and normal (Glassner 1999; Gray 2006; Silbey 2009: 357; Slapper 1999: 7). This is where decisions about risk-taking are most regularly taken and where the need to employ systems of regulatory intervention to pattern those decisions so as to achieve public-interest goals is most pronounced. As outcomes of ‘normal’ working practices, work-related deaths reflect a public interest in the control of unacceptable risks to health and safety and demonstrate the potential for the autonomy of workers to b...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Cases
• List of Statutory Materials
• Preface
• Acknowledgements
• Series Preface
• An Introduction to Work-Related Deaths
• 1. The Shift from ‘Regulation’ to ‘Crime’
• 2. The International ‘Corporate Manslaughter’ Phenomenon
• 3. Work-Related Deaths as Symbolic Events
• 4. Regulating Work-Related Death – A History
• 5. Criminalising Work-Related Death
• 6. The Purpose of Corporate Homicide Liability
• 7. The Limits of Corporate Manslaughter Reforms
• Notes
• Bibliography
• Index