Criminalising Work-Related Death

It has long been asserted that the system of criminal law offences has two constituent parts (Blackstone 1809 Gray 1995 1374) the first deals with the control of conduct which is regarded as offending against a universal norm of behaviour via offences classed as mala in se or wrongs in themselves because of their inherent a priori moral quality (Ashworth 

Part of the reason for this is that offending in the regulatory context is seen as a side effect of otherwise purposeful wealth-creating industrial activity which must be managed rather than prohibited (Baldwin et al. 1998 3 Gill 2002 Hawkins and Thomas 1984). Wrongdoing is framed in terms of potential rather than actual harm (Husak 2008 40  

The second main outcome has been the deflationary effect that this use of criminal law as a regulatory tool has had in terms of the social and legal perception of the offences involved. By pursuing enforcement practices that utilise discretion to ration the use of prosecution (Hawkins 1984 2002 Lloyd-Bostock 1992 Mascini and Houtman 2011) and prosecuting only in cases of the sort of moral wrongdoing normally associated with mala in se offending, regulators employ what Brudner 

The paradox here is that Factory Inspectors were pressing for the removal of formal mens rea requirements at the same time as they were instituting informal ones via their enforcement practices prosecution under the strict liability offences occurred only where there was felt to be a significant level of moral wrongdoing that might suggest mens rea, such as where employers deliberately flouted the law in such a way as 

Health and safety regulation became a means of settling the negotiable individual interests of worker, employer, government, and public, rather than a matter of upholding a universal interest in safe workplaces that respect the welfare of all. 

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Many supporters of the Act and those who seek to criminalise corporations that kill workers will find Paul Almond s critique of its provisions enlightening. For him, while it may be a form of penal populism and the result of political expediency, it is also a necessary measure, and one that has the potential to bring very positive benefits. Even then, it must be acknowledged that the new offence is unlikely to be effective in practice and may not constitute the optimal means of responding to work-related deaths. 

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