The Criminalisation of Safety Deficiencies in Europe

The Criminalisation of Safety Deficiencies in Europe

What is the role of criminal law in relation to safety matters? How can criminal negligence or intent be proven in safety-related investigations? The article summarises the seminar discussion organised by the Centre of Expertise on Global Governance and the Institute of Security and Global Affairs.

The improvement of occupational health and safety has been traditionally analysed from the perspective of risk management or workplace safety culture. However, there is a growing popularity of the criminological perspective that looks at violations of workplace conditions through the lens of safety crimes. Tombs and Whyte (2007) discuss safety crimes within the broader context of corporate and white-collar crimes and argue that, despite a few high-profile cases of fatal work injuries that receive some media attention and court time, the overwhelming majority of safety crimes remains under-criminalised and under-enforced.

To advance the debate on this topic and its implications, Dr. Anna Matczak (The Hague University) and Dr. Joery Matthys (Leiden University) with the assistance of Dillon Ashmore (The Hague University) jointly organised a seminar on “The Criminalisation of Safety Deficiencies in Europe”, which was held online in December 2021. Throughout an afternoon this seminar provided a platform for both academics and professionals to share their research, expertise and understandings of the topic which included three presentations by Professor Steve Tombs (Open University), Professor Anne Alvesalo-Kuusi (University of Turku) and Professor Gabriele Landucci (University of Pisa).

The first speaker’s presentation on “The de-criminalisation of health and safety in British workplaces” focused on four areas: the current state of health and safety regulatory landscape in the United Kingdom, the emergence of the Better Regulation agenda, trends in enforcing health and safety legislation in the last decade and safety law enforcement during the Covid-19 pandemic. It seems that recent developments in health and safety regulation in the United Kingdom have concentrated on improving business competitiveness rather than compliance, coming from a perception of health and safety regulation as burdensome. This shift, Professor Tombs explained, generated the perception of health and safety regulations ruining Britain and as he more eloquently described, it reminded people that Britain didn’t rule the waves wearing armbands. Consequently, workplace oversight and enforcement – funding, staff, inspections, and prosecution – fell significantly. This was amplified throughout the pandemic and according to the statistics quoted by Professor Tombs in the seminar, with the current state of affairs, the average British employer can expect to be inspected for health and safety compliance, once every two-hundred-and-seventy-five years.

The second speaker, Professor Alvesalo-Kuusi discussed the possibilities for policing and punishing of safety crimes by presenting two of her previous research projects. The first study considered police perceptions of safety crimes and the second one was about the implementation of criminal liability legislation, with the focus on corporate fines. Although the Finnish Penal Code defines ‘work safety crimes’ relatively well, the first study corroborated how the police’s traditional perceptions of crime, which highlight characteristics like cause and effect, motive and intent, are insufficient for understanding corporate crimes. However, Professor Alvesalo-Kuusi did explain, through what she described as faint optimism, that the second study showed the implementation of criminal liability legislation in Finland as a promising development.

The final speaker, Professor Landucci spoke about human error, and how the likelihood of this was influenced not only by safety regulations, but also by organisational and operational factors, and proactive commitment from both managers and operators. The presentation took a human system engineering approach, explaining that the construction of a metric was necessary to find out what composed the likelihood and severity of a major accident occurring, and how human error is part of that equation. He then looked at safety regulation that was the result of major accidents occurring, and concluded that they mainly focused on increasing the quality of technical components, and generally took a more reactive approach. The human component, through a managerial approach, was less present. Hence, while health and safety regulations do aim to improve (technical) workplace standards, the lack of attention on the human component in the criminalisation of safety deficiencies, may actually erode safety cultures in workplaces.

Dr. Joery Matthys in his summary of the seminar pointed out the combination of unique perspectives gained from each speaker’s presentation on the criminalisation of safety deficiencies, but also the current evolution of criminal law from focusing purely on acts with criminal intents to acts of omission as well. While Professor Tombs explored the policy and governance behind it, Professor Alvesalo-Kuusi concentrated on the realm of policing and Professor Landucci argued that safety crimes seen as human errors can be part of the proactive modification processes of workplace management. Each of these perspectives complemented each other and made for a stimulating seminar that not only broadened the emerging criminological scholarship but also explored the degree to which employers are responsible and willing to be responsible for safety omissions. As highlighted by Dr. Matthys, while the first two presentations demonstrated the willingness of governments to regulate and corporations to comply with health and safety regulations, the third presentation showed how business enterprises might take an amoral approach and inform their decisions based on risk assessments tailored to the frequency and severity of such errors but also the possibility of being caught committing safety crimes.

The organisation of the seminar was funded by the Seed Research Grant, the purpose of which is to bring together The Hague University of Applied Sciences' Centre of Expertise on Global Governance and ISGA in order to expand their research undertakings and teaching curricula. The first idea for such an international seminar originated at an internal research lunch event organised by the Safety and Security Management Studies programme in 2019, during which Ben Leung shared his reflections on the book “Safety crimes” by Professor Steve Tombs and Professor David Whyte. This later on contributed to the modification of the minor “Crime, Safety & Security”, convened and coordinated by Dr. Matczak at THUAS, where the concept of safety crimes has become a fixed element of the weekly theme on corporate crimes.