Safety Crimes

Steve Tombs, Dave Whyte

• Publisher: Willan
• Year: 2013
• Print ISBN: 9781843920861
• eBook ISBN: 9781134023103
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Every year in the UK, hundreds of workers are killed just doing their jobs, thousands more die of illnesses caused by their work and tens of thousands suffer major injuries such as amputations, loss of sight, serious burns, and so on. Worldwide, two million people are killed by work each year. Yet with the exception of high profile cases such as the gas leak at Bhopal, India, which killed tens of thousands, this crime wave fails to attract the interest of the politicians, the media or - least forgiveably of all - the knowledge industry of criminology. This book is concerned with crimes against worker and public safety, providing an account and analysis of this increasingly important field, and setting this within the broader context of corporate and white-collar crime. It uses case studies and original analyses of official data to illustrate key points and themes, drawing upon both well known and high profile instances of safety crimes as well the mass of ubiquitous 'mundane' or 'routine' deaths and injuries. Thus the book examines how much safety crime is there, how are such offences rendered invisible, and how can their extent be unearthed accurately? Throughout the book the authors analyse the social, legal and political processes that ensure that safety crimes remain subject to under-enforcement and under-criminalisation. This analysis identifies key moments in the historical development of criminal law and regulation, and assesses the prospects for criminalising safety crimes in the context of contemporary neo-liberal regulatory policies. The theoretical and political justifications for dominant approaches to the regulation and sanctioning of safety criminals are subject to critique in order to develop alternative, more effective, means of criminalisation and punishment. The book concludes with an original analysis of safety crimes that allows us to understand the complexities of the conditions of their production, and develop a more realistic appraisal of the prospects for their amelioration.

Chapter 1

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Introducing safety crimes

Introduction

If you were to stop one hundred people in the street and ask them to list, in their opinion, the five most serious crimes in Britain today, it's a very safe bet that in the vast majority of responses no form of corporate crime would feature. This is not to be disparaging of popular understandings of crime, for these ways of seeing are socially constructed. So, check today's newspapers for reports of political discussions or Home Office statements on law and order: again, corporate crime will be absent. Now scour those newspapers more thoroughly, and try to find corporate crime stories — corporate crime may be covered, but is unlikely to be given prominence, nor discussed in the language reserved for ‘real’ crime, and is more likely to be financial ‘scandals’, in specialist sections far from the headline-grabbing news pages. Check your TV guide for today's viewing, and search for corporate crime coverage amongst what will no doubt be a great deal of fictional, real-life and documentary programmes on crime — and it would be a surprise to find much, if any.

Now if corporate crime — in essence, crimes by corporations in pursuit of their legitimate goals¹ — is relatively invisible, then this invisibility is even more marked for some of the subcategories covered by this general term. One such sub-category — safety crimes² — is the subject of this text. Safety crimes — which we define as violations of law by employers that either do, or have the potential to, cause sudden death or injury as a result of work-related activities — are, we shall argue throughout this book, ubiquitous, have devastating physical (and psychological) effects, and carry with them enormous financial and social consequences. Despite this, such crimes remain relatively invisible at the level of political and popular consciousness. Indeed, where events that may be represented as safety crimes do emerge in such contexts, they tend not to be represented as such: instead, they are likely to be viewed as accidents, disasters, tragedies, and so on. Even less forgivably, safety crimes as an area of focus is also obscured by the overwhelming focus of criminological teaching, research and writing.

It is this relative invisibility that is the central rationale for this text. We are concerned here with how this is achieved, why this is the case, and with the consequences of such crimes being obscured. Further, we wish to examine the role played by institutions and processes in maintaining definitions of crime from which safety crimes are marginalised. And, finally, we seek to set out some of the conditions for overcoming this relative invisibility. That is, we ask in what ways might governments, the media, the law and criminal justice system, and, indeed, criminologists, take safety crimes more seriously — and what might the effects be of any emergent focus upon this widespread area of offending.

If the invisibility of safety crimes is a central, recurrent theme of this book, then perhaps our first task is to put some safety crimes before our readers' eyes: what are safety crimes, what do they look like, what forms do they take, where do they occur, what consequences do they have, who are their victims, and how does law and its agencies respond to them? For this reason, the bulk of this chapter is devoted to a series of brief case studies of such crimes, to establish contours of the all-too-unfamiliar phenomenon with which the book is dealing. Prior to turning to these cases, we seek briefly to mark out the terrain of the book through a definition of safety crimes.

What are safety crimes?

As we have indicated above, safety crimes, as used throughout this text, are a subset of corporate crimes. And our understanding of the latter follows what has by now become a fairly standard definition, based upon the work of Kramer (1984), Clinard and Yeager (1980: 16), Schrager and Short (1978), and Box (1983). Thus, by ‘corporate crime’, we mean

Illegal acts or omissions, punishable by the state under administrative, civil or criminal law which are the result of deliberate decision making or culpable negligence within a legitimate formal organisation. These acts or omisions are based in legitimate, formal, business organisations, made in accordance with the normative goals, standard operating procedures, and/or cultural norms of the organization, and are intended to benefit the corporation itself. (Pearce and Tombs 1998, 107–110)

We can, for the purposes of this text, simply replace corporate crime with safety crime in this definition. And this definition has a series of useful characteristics, to which it is worth drawing immediate attention.

Safety crimes may constitute violations of the Health and Safety at Work Act 1974, the primary piece of safety legislation in the UK, which is a criminal statute. Equally, however, there is legislation governing occupational safety that falls beyond the criminal law. Within the above definition, then, through reference to illegal rather than criminal acts, it avoids the restriction that follows from the fact that many laws, enforced by administrative bodies through the civil courts, also regulate actions which cause injuries to specific individuals or which undermine social institutions. Indeed, following Sutherland, the content of laws and the nature of legal distinctions such as those between crimes, torts and administrative sanctions, between acts mala in se and mala prohibita, are conventional, time-bound social products without an intrinsic substantive meaning that transcends their social or historical contexts; what acts or omissions constitute crime must be understood in terms of contingency (Lacey 1995). Thus, we extend our definition of crime beyond that proscribed by criminal law or indeed that which has been processed through the legal system.

Second, through references to negligence and the use of the phrase ‘omission or commission’, the definition avoids the trap of arguing that for corporate crime in general — and safety crime in particular — to exist there must be actus rea and mens rea (‘knowing mind’). Given the organisational locus or origins of safety crime, to emphasise either an illegal act or an intention is often inappropriate, for two reasons. First, each term is anthropomorphic and individualising, and by definition is problematic in its application to a corporate entity which is more than, or different to, the sum of individual human actors. Second, intention implies a relatively unproblematic link between an act or omission and its consequence — yet this simplistic causal sequencing leads to an obscuring of the construction and maintenance of a situation or context which, as a consequence, is fertile ground for violations. Any focus upon safety crimes requires us to examine these in terms of their organisational production.

On the former point, it has been argued that ‘most corporate crimes cannot be explained by the perverse personalities of their perpetrators’ (Braithwaite 1984: 2), and this claim calls into question the proclivity within individualistic liberal or bourgeois cultures to locate the source of evil deeds in evil people (ibid.; see also Shrager and Short 1977: 410, Snider 1993: 61). Corporate and safety crimes can be produced by an organisation's structure, its culture, its unquestioned assumptions, its very modus operandi, and so on. Thus to understand such phenomena must not obscure human agency, but does require a shift from abstracted, atomised individuals to account for agency in the context of structures.

The definition of safety crime used in this text is, then, an explicitly inclusive one. That is, throughout this text we discuss as crimes many acts and omissions which have not been subject to any formal judicial process; thus these are phenomena which have not been interrogated as, let alone proven to be, violations of the criminal, or indeed any other form of law. To fail to do otherwise would lead us into the study of what Braithwaite called class-based administration of criminal justice, thereby obscuring precisely the most useful insights of Sutherland regarding the class-biased development of law and its differential implementation (see Chapter 4).

Other issues regarding our definition of safety crimes, and thus the scope of this text, require brief clarification.

First, we should emphasise that we focus here upon safety rather than health. While the commonly-used phrase ‘health and safety’, and the very object of legislation in this area, often reinforces the intimately linked nature of these two concepts, consideration of each raises some common, but many distinct, phenomena. Violations against worker or public safety are — usually — immediately apparent through near-miss, injury or even death; violations of occupational health law often involve a much more complex and contestable causal chain, the key factor often being a state of affairs rather than an event, such as long-term exposure to a noxious substance or endurance of a unhealthy mode of working which can produce cancer, stress or arthritis much later in one's life. This causal complexity makes the burden of proof a difficult one for victims of such crimes — involving, not least, often confounding resort to complex and often contradictory scientific claims. Similarly, the immediate visibility of safety offences as opposed to health offences means that it is the former that are much more likely to result in formal enforcement action on the part of regulators — rare though any form of such action is. Partly related to this is the fact that if occupational injury data is incomplete and problematic, to say the least, as we shall see in Chapter 2, that relating to occupational ill-health is almost non-utilisable — problems of measurement beset the area of occupational health to a far greater extent than that of occupational safety. And, again perhaps relatedly, there is also a sense in which meeting legal duties to provide a safe working environment imposes less costs in terms of changes to work organisation, practices and so on than dealing with less tangible ill-health effects.

None of this is to relegate occupational health crimes below that of safety crimes in social importance. But it is to say that there are important differences, so that an adequate treatment of each would require a much longer text than can be presented here. Further, none of this should imply that there are not common causes of occupational safety and health crimes — each can be understood, for example, through many of the causal factors or characteristics of acute deaths as set out in the table at the end of this chapter.

Second, we should clarify that while our focus is upon safety crimes, neither the legal duties that are being violated by these, nor the effects of such violations, are restricted to workers. Thus, for example, the Health and Safety at Work Act 1974 extends the duty of care owed by employers not simply to employees and the self-employed, but also to the general public as well as others, such as sub-contractors, not in direct employment but likely to be affected by the conduct of the employer's undertaking (sections 3–5). This is a recognition that whilst the victims of safety crimes are often employees, no actual nor metaphorical factory fence can exist that protects members of the public from decisions and omissions within companies that produce offences with actual or potentially dangerous effects. And the force of this legal requirement is under-scored in some of the cases selected for consideration below. Thus, for example, while the gas leak at Bhopal killed employees at the Union Carbide plant, arguably far greater devastation was wrought upon the local community, where tens of thousands were exposed to the gas, and to the surrounding natural environment, much of which remains despoiled to this day; the victims of the failure to ensure a safe system of work aboard the Herald of Free Enterprise were mostly consumers, that is, passengers; and the four deaths which arose as a result of the faults of Transco to work safely were of a family to whom the company supplied gas. Business organisations supply goods or services; those to whom those goods or services are supplied, or who live in the proximity of areas where some of that production or supply is undertaken, are just as likely to be victims of safety crimes as workers.

Finally, it remains here to be stated that throughout this text we view safety crimes as crimes of violence. Though this is not an original approach, it is, as we shall see, one which, in the context of academic criminology and general representations of occupational injuries, a rarity. For us, this lack of criminological attention to safety crimes as crimes of violence is less a quality of the latter phenomena, more a failure of the discipline to reflect upon long-standing, but ontologically weak, assumptions. Thus once occupational injuries are viewed not as accidents but as incidents which are not only largely preventable, but which the law requires to be prevented, then they fall within the ambit of criminology. Then, if we consider these illegalities in terms of their potential or actual consequences — injury and death — we realise that these look remarkably similar to the results of those events that most men and women, as well as policy-makers, politicians, and academics, deem to be ‘proper’ violence. Most crucially, these latter conceptions of violence are, as we shall see, based upon an implicit association of violence with the inter-personal and with intention, both qualities that are often absent from safety crimes. That safety crimes are crimes of (actual or potential) violence is, for us, unequivocal; yet to reach this conclusion one must generally move beyond criminology, to understandings of violence developed in other disciplines.

One such holistic understanding of violence has been developed by Jamil Salmi who, following Galtung amongst others, has set out a systematic analytical framework which aims to explore a variety of dimensions of this phenomenon; he then identifies the patterns and relationships linking the various manifestations of violence to the prevailing economic, social and political power structures in an effort to establish accountability. Salmi sets out four broad categories of violence, and indicates a series of type within each category.

First, he identifies ‘Direct Violence’, that is, deliberate injury to the integrity of human life, which includes homicide, brutal acts and restrictions or physical constraints. It is within, though not encompassing all of, this category of violence that the overwhelming majority of criminological research proceeds. Highlighting intent through reference to deliberate injury (Salmi 2004: 56), this would exclude most forms of deaths and injuries associated with working.

Second, Salmi notes ‘Indirect Violence’, namely indirect violations of rights to survival; this includes the sub-categories of violence by omission, which ‘draws on the legal notion of non-assistance to persons in danger’ (ibid. 57), and mediated violence, ‘which is the result of a deliberate human intervention in the natural or social environ...

Table of contents

• Cover
• Half Title
• Crime and Society Series
• Full Title
• Copyright
• Contents
• Acknowledgements
• List of tables and figures
• List of abbreviations
• Foreword by Rory O'Neill
• Chapter 1 Introducing safety crimes
• Chapter 2 Mapping occupational death and injury
• Chapter 3 Obscuring safety crimes
• Chapter 4 Discovering safety ‘crimes’
• Chapter 5 Differentiating safety crime from ‘real’ crime in law
• Chapter 6 Assimilating safety crimes
• Chapter 7 Regulating safety crimes
• Chapter 8 Punishing safety crimes
• Chapter 9 Conclusion: making sense of safety crimes
• Sources of further information
• References
• Index