Blood in the Bank

Social and Legal Aspects of Death at Work

Gary Slapper

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN: 9781138611672
• eBook ISBN: 9780429864926
• Edition: 1
• Topic: Social Sciences
• Subtopic: Labour Economics
• Index: Social Sciences

First published in 1999, this volume is based upon a detailed empirical study of 40 cases of commercially-related deaths - the first such English study. The cases are taken from 20 towns and cities in England. Slapper critically examines the theory and practice of the legal response to such deaths. The conduct of the Health and Safety Executive, the police, coroner, lawyers and the Crown Prosecution Service are analyzed in detail. He executes his analysis in three stages: events are first scrutinized in the context of the law that governs them; the deaths and official responses are then considered in the context of the psychology of the decision-makers; and finally the dramas are looked at in a wider context of political economy. Slapper draws several disturbing conclusions.His original empirical research, based on attending coroner's hearings and interviewing those interviewing those involved in enforcing safety laws, shows how and why potentially criminal behaviour at work is constructed as merely regulatory misbehaviour or even as no more than an unavoidable 'accident'.

1 The Theoretical Framework: Criminal Law, Manslaughter, the CPS, the Police, the HSE, and the Coronial Inquest

Before exploring the legal system’s de facto response to deaths at work it is appropriate to consider the possible de jure responses; to examine the relevant law and its putative purpose, the regulatory framework in which the various agencies operate and how the different components are supposed, in theory, to gear together. This chapter begins by exploring the nature and purpose(s) of the criminal law. Next, the chapter examines the law of manslaughter and the official prosecutorial code and practice of the Crown Prosecution Service. The chapter then considers what role in the official response to death at work is supposed to be played by the HSE, the police, and by the coronial inquest. There is a plethora of rules and regulations governing many parts of the systems described below. The aim here is to provide a general context and explanation of official functions, not to detail exhaustively all the law.

The Criminal Law

The aim of this excursus into criminal jurisprudence is to establish what are the popularly acknowledged purposes of the criminal justice system. There is a rich literature which looks critically at penology and the purposes of the criminal law for example, Thompson (1975); Hay (1977); Foucault (1977); Garland (1990); Cohen (1985); Lacey (1988); Lacey and Wells (1990); Lacey, Wells and Meure (1990); Rutherford (1993); Norrie (1993). Some of the critical approaches become relevant in later chapters. This chapter, however, is principally concerned with setting out the orthodoxies of the criminal justice system. This will be the doctrine against which the success of the system can be judged on its own terms and against which it will be argued in subsequent chapters, that some (if not many) incidents of death in the workplace are suitable for response from the machinery of the ordinary criminal justice system as opposed to adjuncts of it such as health and safety legislation and its inspectorate. The criteria for suggesting that such a response is appropriate are the existing standards, rules, precedents and legislation of the criminal law. It is not argued that the injurious conduct should be treated as criminal simply on the basis of outcome (death) or moral equivalence to that which is already treated as criminal. The argument is accepted, therefore (Tappan, 1947; Tombs, 1995), that to use moral criteria alone to incorporate detrimental conduct within the definition of ‘crime’ is to present a highly vulnerable case; the limits of the corporate crime thus argued for could extend past ordinary crimes, through administrative offences to civil wrongs and beyond. They could extend to any arbitrary boundary drawn by the critic.

The point at issue, however, is how the nature of legal responses to death at work is affected by the political economy. So, having set out what can be taken as the orthodoxies of the criminal justice system, the chapter will adumbrate a paradigmatic economic analysis, a historical materialist analysis of the origins of criminal law and highlight its main points of distinction from legalistic histories. The term ‘historical materialism’ (and its grammatical variants) is used in a descriptive rather than doctrinaire sense because, following Marx, Engels, Reiner, Nelken, Hay, and others, it is accepted that the influence of personalities, influential individuals and hermeneutical factors cannot be ignored or marginalised in any serious historical analysis. Beck’s contention (1992) is also accepted, that risk is a political issue which in some respects can be seen to transcend economic class. Legalistic histories are contrasted with materialist histories by way of introducing, at the outset, the nature of the tension between these epistemologies in the context of explaining the legal response to deaths at work.

The Nature of Criminal Law

There is a view that it is impossible to be definitive about the nature of a crime because the essence of criminality changes with historical context. As Glanville Williams has observed (1983, p. 27), ‘...a crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment’.

A crime is anything that the state has chosen to criminalise. This analysis was also taken by Lord Atkin:

The domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.¹

In an attempt to escape from the circularity of these definitions of crime, some writers have sought to explain its nature in terms of the seriousness of the conduct it prohibits.

Thus Williams eventually concedes (1983, p. 29) that:

... a crime is an act that is condemned sufficiently strongly to have induced the authorities (legislature or judges) to declare it to be punishable before the ordinary courts.

This is a little more helpful but it still leaves unanswered the question – ‘condemned sufficiently strongly’ by who? The principle appears to owe much to the thinking of Durkheim, who remarked on the way that collective social consciousness can be enhanced by the condemnation and punishment of deviance. Criminal law therefore arguably both arises from and then bolsters social solidarity.

It is this solidarity that repressive law expresses, at least in regard to what is vital to it. Indeed, the acts which such law forbids and stigmatises as crimes are of two kinds: either they manifest directly a too violent dissimilarity between the one who commits them and the collective type; or they offend the organ of the common consciousness. In both cases the force shocked by the crime and that which rejects it is thus the same. It is a result of the most vital social similarities, and thus its effect is to maintain the social cohesion that arises from these similarities (Durkheim, 1984, 1893, p. 61).

The significant point about this view of the criminal law is that it is so widely shared by those who write about and operate the criminal justice system (Lacey, 1988; Taylor (Lord), 1993), even if some of them are unaware of the subtler point made by Durkheim that the solidarity of modern societies no longer can or should be based on the repressive sanctioning of threats to common values (Nelken, 1990, p. 831). There are many variants on this outlook – some writers, for instance, do not share Durkheim’s analysis of the criminal law as necessarily enhancing social solidarity – but the perception of this law as concerning serious wrongs whose commission has a deleterious effect on society is ubiquitous.

In one leading theoretical text Criminal Law, Smith and Hogan (1992, p. 16) acknowledge the view of Sir Carleton Allen, who writes:

Crime is crime because it consists in wrongdoing which directly and in serious degree threatens the security or well-being of society, and because it is not safe to leave it redressable only by compensation of the party injured.²

The public nature of crimes is evidenced by the fact that technically, any citizen is permitted to bring a prosecution after a crime; he or she does not have to establish a personal interest or locus standi as in civil proceedings.³ If a citizen begins a prosecution, he or she may not discontinue it at will because it is not only his concern but that of all citizens.⁴ If a prosecution succeeds and sentence is passed, a pardon cannot be granted by the instigator of the prosecution, it can only be granted by the crown.

In an earlier edition of their text, Smith and Hogan reported (1988, p. 12) with approval the view of Edmund Davies J as he then was, in 1963, speaking about the ‘prime object of the criminal law’ as being the ‘protection of the public and the maintenance of law and order’. Addressing the Magistrates’ Association he said: ‘It seems to me that ... every court sentence should primarily be surveyed in the light of one test: is that the best thing to do in the interest of the community?’

A similar outlook can be found in the writings of early and modem jurisprudence and in many historical accounts. The raison d’être of criminal law is seen as the provision of basic protection of social interests. In his Commentaries on the The Laws of England, William Blackstone contended (1979, 1769, p. 5) that the distinction between private wrongs and crimes was:

that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs or crimes and misdemeanours are a breach and violation of the public rights and duties, due to the whole community; in its social aggregate capacity. As if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public, which of us is in possession of the land: but treason, murder and robbery are properly marked among crimes; since besides the injury done to individuals, they strike at the very being of society ... [emphasis added].

Bentham presents a very similar view. Under the heading ‘Reasons for Erecting Certain Acts into Offences’, he writes in The Theory of Legislation that the criterion of whether conduct should be made a criminal offence should be ‘utility’ rather than the inherited prejudices of custom. Conduct is to be weighed, he suggests, so as to determine whether the good that results from it is outweighed by the bad; a task facilitated by the distinction between evils of the first, second, and third orders (1975, p. 33):

Am I to examine an act which attacks the security of an individual? I compare all the pleasure, or, in other words, all the profit, which results to the author of the act, with all the evil, or all the loss, which results to the party injured. I see at once that the evil of the first order surpasses the good of the first order. But I do not stop there. The action under consideration produces throughout society danger and alarm. The evil which at first was only individual spreads everywhere, under the form of fear. The pleasure resulting from the action belongs solely to the actor; the pain reaches a thousand – ten thousand – all. This disproportion, already prodigious, appears infinite upon passing to the evil of the third order, and considering that, if the act in question is not suppressed, there will result from it ... the dissolution of society.

The jurisprudence of H.L.A Hart is distinguishable from that of Blackstone in several important areas, but they share a very similar premise relating to the nature of the criminal law. Hart has argued that a legal system arises from a combination of primary and secondary rules. Primary rules concern rudimentary social obligations and impose duties; the rules here relate to the basic needs of society and their aim is to ensure survival: ‘... for our concern is with social arrangements for continued existence not with those of a suicide club’ (Hart, 1961, p. 188).

The secondary rules confer public and private powers regulating the application of primary rules. Criminal law occupies an important place within the province of primary rules. Writing about the ‘minimum content of natural law’, Hart suggests that, given survival as an aim, law and morals must include a minimum specific content. He bases this contention on ‘five simple truisms’ (1961, pp. 189–95). Calling a proposition a ‘truism’ discounts any need to adduce argument or evidence to corroborate or verify it and consequently, Hart’s propositions are left unsupported by any appropriate anthropological, economic or historical evidence, and, it is respectfully suggested are highly contentious and questionable. Such argument, though, is outside the purview of this discussion. It is in these ‘truisms’, however, that we find Hart’s justification of criminal law. Hart’s first point is that because of our ‘human vulnerability’ we need rules to restrict the use of violence. We are ‘both occasionally prone to, and normally vulnerable to, bodily attack’. Second, we have ‘approximate equality’ so we need a system of mutual forbearance and compromise. This makes life ‘less nasty, less brutish and less short than unrestrained aggression for beings thus approximately equal’. Third, we are all beings of ‘limited altruism’, neither devils nor angels; this, it is contended, makes a system of mutual forbearance both possible and necessary. Fourth, we suffer scarce and ‘limited resources’, so property law, it is argued, is necessary to lend order to the process. This essentially political judgement is presented as axiomatic. Fifth, as we have ‘limited understanding and strength of will’ we need law to deal with those who do not recognise the value of the rules of forbearance:

All are tempted at times to prefer their own immediate interests and, in the absence of special organisation for their detection and punishment, many would succumb to the temptation (Hart, 1961, p. 193).

Although, as Field and Jörg have commented (1991, p. 159), Hart’s notion of moral responsibility is founded upon capacities to differentiate right from wrong and to act accordingly, his ultimate justification for criminal law rests on the less metaphysical dictates of social survival and welfare.

Again, this approach is reflected in many legal-historical accounts. Kiralfy (1958, p. 153) states that the essential object of criminal law is ‘the preservation of order in the community, and only indirectly the punishment of any injury that may be done to any individual’.

If there is such clear consensus among those who have influenced the operation of the criminal justice system then it is reasonable to judge the success of the system’s functioning (i) by the extent to which it achieves the aims expressed by the consensus view of theoreticians and practitioners and (ii) by whether its policies have been formulated in accordance with its generally accepted purposes. It will be argued in succeeding chapters that the failure to prosecute the crime of corporate manslaughter is inconsistent with the oft-quoted aims of the criminal justice system. Manslaughter is one of the most serious offences in the criminal calendar. It is an offence which, in the words of a leading judgement, goes ‘beyond a mere matter of compensation between subjects’.⁵ The evidenc...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of contents
• List of Cases
• List of Statutes, Statutory Instruments and EC Legislation
• Acknowledgment
• Introduction
• Series Preface
• Preface
• 1 The Theoretical Framework: Criminal Law, Manslaughter, the CPS, the Police, the HSE, and the Coronial Inquest
• 2 The Development of Corporate Liability and the Scale of Corporate Risk-Taking
• 3 The Legal Process (1): The Police, the CPS and the HSE
• 4 The Legal Process (2): The Inquest
• 5 Social Perceptions of the Dramatis Personae
• 6 The Historical and Economic Context
• 7 Legal, Criminological and Social Science Perspectives
• Bibliography
• Appendices
• Appendix 1
• Appendix 2