John Smith was found dead at work. He was working on a lathe on a twelve hour shift. It is reported that the guard on the lathe was missing, but they argue that he might be dead from a heart attack. It is not clear either the missing guard caused his death or he fell in to the lathe as a result of his heart attack.
At the absence of a witness who saw the accident it is difficult to identify the direct cause of his death. There are not sufficient information for an investigation concerning the shift of the work; day time or night, and his employment history, as well as his general health, domestic situation, previous employments and training.
However fatal and non-fatal offences and accidents are very common within the workplace, so the possibility of a criminal offence is credible:
There were 235 fatal injuries to workers in 2003/04, an increase of 8 (4%) on the 2002/03 figure of 227. [Health and safety Executive (HSE) 2003/2004 (online)]
Non-fatal injuries such as slips and falls, struck by moving or falling objects and injuries as a result of handling lifting and carrying materials recorded by the HSE are also in rise:
The number of reported major injuries to employees rose by 9% in 2003/04, to 30 666 from 28 113. The rate of reported major injury to employees also rose by 9% in 2003/04, from 111.1 to 120.7. [Health and safety Executive 2003/2004 (online)]
It can be argued that the number of the non-fatal injuries or offences is much higher than what is recorded in the statistics; however the number of the fatal offences is more reliable because a dead person needs death certificate and it cannot be easily hidden from the authorities. However the fatal offences are not reported as crimes but as accidents, as Wells (1993) said:
Events in which death, injury, or disease result from inattention to regulations are generally described as "incidents", "accidents; or even "disasters' rather than "crimes". [Cited in (Croall, 1998:270)]
It can be argued that working environment same as other situations of life is not free from accidents, as criminal prosecution needs (acts or omissions) this may not be always exist or at least obvious on the part of the companies and the directors. [Williams, 2001: 70]
It can be argued that companies and organisations are not individuals to have a guilty mind (Mens rea) which is necessary for a crime such as manslaughter; however the manger or the director can be treated as the "responsible individual" for that purpose:
The test of whether a "company" is guilty of manslaughter or not is intrinsically linked to whether or not a director or senior manager of the company - a "controlling mind and will" of the company - is guilty of manslaughter. If the director/manager is found guilty, the company is guilty; if the director/manager is found innocent, the company is innocent. [Centre for corporate Accountability, 2004 (online)]
It is not easy to prosecute a large company even when there are evidences of breaching the Health and safety regulations because of various reasons including the nature of the economic system, Croall says:
While there is little evidence that large companies are treated more sympathetically, they may be less likely to be prosecuted. Large companies and indeed wealthy individuals can and do use their considerable resources to prevent prosecution and, if prosecuted, to defend themselves. [1992: 52]
However the number of deaths within the workplace resulted from criminal offences are so serious that they cannot be ignored. As Whyte says:
Not all deaths at work are the result of criminal breaches of health and safety law, but around 70 per cent are likely to be ( see Pearce and Tombs, 1998:129-31)… The total number of deaths at work that result from health and safety crimes are therefore likely to exceed 4,500 each year, and this is before we factor in the largely unknown total of deaths caused by other occupational diseases. [2004: 136]
In John Smith's case it is clear that the guard of the lathe was missing, so the lathe was not safe for work, and this is an offence in itself according to Provision and Use of Work Equipments 1998 (PUWER). According to PUWER any equipment should be:
Safe for use, maintained in safe condition and, in certain circumstances, inspected to ensure this remains the case. [Work Equipment and Machinery: Legislation (online]
The company may argue that they did not commit an offence, as there is not an obvious guilty mind means rea for the crime; however it can be argued that the unsafe condition of the machine provides enough evidence for manslaughter under the duty of care. Williams (2001: 66) remarked on this subject by saying:
