Occupational safety incidents 1 and occupational health -related sicknesses are the most common causes of suffering in developing countries. Yet, occupational health and safety (OHS) crimes in Britain 2 are subject to chronic form of under-criminalisation , which means violent injuries and sicknesses resulting from working conditions have traditionally been punished significantly less frequently and more leniently than other similarly harmful crimes (Carson 1970a, b, 1979; Fooks 2008; CCA 2008). Given that employers have an absolute responsibility over the health and safety of employees and that it is estimated that there are 12,000 deaths caused by occupational incidents and occupational diseases per year in Britain alone. We should expect the prison population to be mainly composed of employers and company directors, but this is not the case. Firms, employers and company directorsâespecially of larger firms and corporationsârarely go to prison and are often inadequately penalised (Reiman and Leighton 2010). In addition, British employers, corporate directors and firms pay only a small part of the social costs caused by OHS incidents , such as medical costs, lost working days and invalidities (CCA 2008; Fooks 2008; Carson 1970a, b, 1979). In fact, the Health and Safety Executive (HSE), the main British OHS regulator, has published a report estimating that between 2006 and 2011 employees and their families, on average, bore 60% of the cost of OHS incidents , while employers and the state bore 20% each (HSE 2013a). The findings from this study suggest that in Italy the level of redistribution seems better due to a national compulsory OHS insurance, but safety crimes appear to be equally under-criminalisation . However, while the under-criminalisation in Britain results from an inadequate reaction of the regulatory institutions, in Italy this happens during court trials. This comparative research study investigates why this is the case.
The scope of this book, thus, is to shed light on the reasons for the under-criminalisation of OHS crimes in Britain and Italy by comparing the enforcement policies and criminal procedures enforcement institutions must follow. Cross-national comparative analyses are challenging and the differences between these two countriesâ social, historical and political traditions can barely be accounted for in this book, but as Nelken (2010) argues, these differences are exactly the reasons why these comparisons are worth pursuing. This comparative study aims to scrutinise the policies governing the enforcement institutions by also taking into account the political processes determining these policies and other global political and economic trends that affect these decisions. The remaining part of this chapter aims to introduce the subject by considering the rationales for comparing these two jurisdictions and exploring the fundamental differences between these two countries that are relative in understanding how and why OHS crimes are under-criminalised.
The paths in policy development that have affected these two countriesâ OHS enforcement practices are very relevant for the literature debate and social policymakers. The 1970s heralded the historical period when goal-setting philosophies started to be introduced for OHS legislations (Lordo Robens 1972). In 1989, the European member states agreed to follow the European Economic Community (EEC) Council Directive (89/391/EEC) to harmonise OHS regulatory frameworks in order to eliminate economic competitive advantages in the single market (Council of the European Union 1989). The EEC Council Directive on occupational safety and health (89/391/EEC) instituted a minimum OHS standard to implement across member states. The adoption of OHS goal-setting legislation and the changes to the nature of economiesâ production that has been happening in Europe since the 1970s has occurred vis-Ă -vis the implementation of innovative law enforcement methods, which are based more on the use of education and support than on deterrence (Pearce and Tombs 1990, 1991, 1998). The British and Italian reforms, however, did not follow similar paths and from the middle to the end of the 1990s started to diverge due to the fundamental legal differences of these two criminal justice systems.
A legal rationale for comparing these two countries is that each has complied with the 1989 EEC Council Directive on OHS (89/391/EEC). In fact, by the early 1990s OHS legislation in Europe was harmonised and countries like Italy had also implemented OHS goal-setting regulation . Although this legislation has been designed mainly to ensure a fair competition across member states, the policies adopted to enforce the regulations have not been harmonised and today might remain one of the most important areas that European governments can act on to create an economic competitive advantage against other European Union (EU) member states. Therefore, these disparities create inequalities for businesses, workers and citizens within jurisdictions and across Europe that are interesting to study in their own right and might become subject to future European-wide regulations. The enforcement policies adopted might also be considered as even more important than the actual regulations, because these will have a significant effect on the levels of compliance. In other words, a regulation might just be a formality if it is not enforced.
Hence, the practices used to enforce OHS regulation are key to ensure compliance, to prevent harm and achieve social justice and equality. There has been much discussion about the most effective enforcement policies to adopt in order to ensure compliance. A comparative analysis of two countries with different OHS enforcement policies but similar regulations, such are Britain and Italy , offers a significant contribution to the literature on the subject. The academic literature discussing this topic, however, is fundamentally divided by the theoretical framework adopted to analyse the issue.
1 Crimes of the Powerful and the State
This research study uses a critical Marxist theoretical framework to understand the causes of the under-criminalisation of OHS crimes in both Britain and Italy . Pearce (1976) has been one of the first to recognise and analyse the social discrimination caused by the different reactions of the criminal justice system from a critical Marxist perspective. He argues that criminologistsâ study of crime and the criminal justice systemâs responses to crime have often been constructed with a labelling theoretical perspective. These assume that the criminal justice system is responsible for labelling the working class as deviant, either as a response to their actions, or, more critically, as a result of the criminalising actions of the criminal justice system itself. The latter process, Pearce argues, occurs because the modern state is directly conditioned and subtly controlled by the bourgeoise class and capitalist interests. As a consequence, OHS legal breaches are under-criminalised because the regulation represents a limit to the economic profits and political power of the bourgeoise class.
Orthodox labelling theorists do not critically analyse how power is structurally distributed throughout the state and law enforcement institutions. They take for granted that power is evenly distributed across social individuals, or factions, and uncritically presume that social decisions are reached consensually through political compromises. Lemert (1967 and 1972), Pearce (1976) argues, criticises Sutherland (1949) for arguing that corporate crime represents the sine qua non of capitalist societies, but instead he sees the deviance of the powerful and elite social entities simply and uncritically as a pragmatic response to pragmatic social problems. A Marxist analysis capable of recognising class struggles is, thus, essential to understanding the causes of the under-criminalisation of OHS crimes in both Britain and Italy .
Labelling theorists fail to explain critically the reasons for the uneven distribution of criminalisation in society. The over-representation of the working class in the criminal justice system, courts and prisons is caused by these social classesâ lack of political organisation and representation (Pearce 1976). They are not failing to organise politically because they have no will or capacity to do so, but because bourgeois interests constantly undermine political organisations and actions that can represent their interests. Labelling theorists, thus, do not question the reasons for the criminal justice system apparatusâs over-response to lower social class crimes and so tend to ignore the under-criminalisation of OHS crimes when theorising new enforcement policies . This argument, however, questions what the role of the stateâor any governing institution perhapsâis and should be. This issue demonstrates how the importance of the survival of the modern bourgeois state is counterposed to ideas of social justice and equality.
Marxists see the state as a modern capitalist institution underpinned by bourgeois interests. The survival of the modern capitalist state ca...