The ever-expanding scope of criminal liability

This series has aimed to provide a brief discussion of criminal liability arising from occupational accidents and diseases. The topic has gained significance as criminal liability, particularly charges of culpable homicide (or manslaughter in other parts of the world), was historically rare in occupational accidents. However, as we noted in an earlier article, criminal charges are now appearing with increasing frequency. Upon deeper examination, this phenomenon proves to be far more serious and widespread than initially thought. 

When encountering a new phenomenon, it’s useful to analyse it within one of humanity’s oldest conceptual frameworks: the tension between the old and the new. This can be understood through the lens of evolution versus revolution. The most famous example is the debate between Edmund Burke and Thomas Paine during the French Revolution. Burke, observing from England, viewed the events in France with growing concern, while Paine regarded them with euphoric delight.

Understanding theoretical frameworks

Burke, in his famous Reflections on the French Revolution, argued that change should be implemented incrementally, evolving from known frameworks to avoid disastrous outcomes. Paine, in his Rights of Man(written in two parts), advocated for destroying existing systems and creating the world anew. Burke’s concerns proved to be prophetic, as France descended into the Reign of Terror, followed by Napoleon’s rise and the subsequent war across Europe.

This framework parallels scientific research approaches, exemplified by Isaac Newton’s famous statement, “If I have seen further than any man, it is because I have stood on the shoulders of giants,” contrasting with the “research by jolly good ideas” approach. Newton’s method emphasises understanding and building upon the past, aligning with Burke’s evolutionary view. The “jolly good ideas” approach, ignoring historical context, mirrors Paine’s revolutionary stance. Notably, Paine proudly claimed never to have read any books, asserting that all his ideas were original.

A third framework contrasts the Greek (and French) theoretical approach with the English empirical view. While France championed René Descartes’ Age of Reason, England followed Sir Francis Bacon’s Age of Reality. Bacon’s Novum Organum rejected the notion that truth could be found through reason alone, arguing instead that it emerged from observation.

The current expansion of criminal liability lacks historical foundation yet is appearing worldwide. To understand this phenomenon, we must examine its origins. Historically, criminal prosecutions for occupational accidents, especially involving culpable homicide, were virtually unknown – despite occupational accidents being common occurrences.

Accident management and workers’ compensation

Workers’ compensation systems, particularly in the US, were introduced based on the understanding that occupational accidents are statistically inevitable. Taking any large population as a sample, if n accidents happen out of a population of N, it was realised that the rate of accidents could be determined as n/N. By the 1700s, mathematicians understood that the Law of Large Numbers existed – showing that accident rates tend to remain constant in large populations. This understanding led to the recognition that while accidents couldn’t be eliminated, their costs could be managed systematically. 

US jurist Roscoe Pound argued that enterprise, not individuals, should bear occupational risks and costs. This evolved into the principle that workers should contribute to society without facing personal liability for workplace accidents. By the early 1900s, most countries had accepted that accident costs should be considered a part of production costs, leading to workers’ compensation systems (the idea that individuals would face personal criminal liability would have been so farfetched that it would have been inconceivable).

Expansions in Criminal Liability

The common law traditionally required intent for criminal charges; accidental injury or death wasn’t considered criminal (the person who committed the crime must have intended to commit that specific crime). So, for a murder to occur, a person must intentionally have killed someone – no crime of accidental injury or accidental killing existed.

This created challenges for judges in cases where accountability was warranted but didn’t merit capital punishment (a death sentence). The concept of culpable (accountable) homicide emerged as a solution, requiring that the accused must have foreseen that their specific conduct would cause death.

Recent developments, however, demonstrate concerning expansions of criminal liability. For instance, following the August 2024 sinking of the superyacht Bayesian off Sicily’s coast, which claimed seven lives – including British entrepreneur Mike Lynch and his daughter – authorities considered manslaughter charges against the captain and crew, despite the accident occurring during a violent storm. Similarly, Telegram CEO Pavel Durov’s arrest for users’ suspected criminal activities on his platform (including gang transactions and trafficking) raises questions about the extent of executive liability, as the CEO did not commit any of these acts.

Should CEOs of motor manufacturers face criminal charges because cars manufactured by the firm are involved in accidents caused by speeding motorists? In the previous article we drew attention to the case of James Crumbley, who had shot and killed four high school students in 2021. The extraordinary development in this case was that his parents were also convicted and sentenced to imprisonment. That, of course, opened the door for more similar cases.

In September, 14-year-old Colt Gray was accused of shooting and killing two teachers and two students at the Apalachee High School in Winder, Atlanta, US. Within days of this event, his father, Colin Gray, was arrested and charged with second-degree murder. The prosecutors went through the now wide-open door. Parents being charged and convicted for crimes committed by their children will soon become commonplace, marking a significant shift in the criminal liability framework. These developments represent a departure from established legal principles, raising important questions about the boundaries of criminal responsibility in modern society.