Results matter, but: only results matter? Occupational health and safety protection through crimes of endangerment. An empirical analysis of Spanish courts (2000-2024).

• In Event: Emerging Issues in Sentencing Research

Abstract

In 1983, to avoid delaying the intervention of criminal law until the moment of the actual production of a harmful result, an endangerment offence in occupational safety and health matters was created in Spain, requiring a mens rea of intention or knowledge. The lack of application of the offence led criminal law theorists to call for the introduction of a second endangerment offence, incorporating negligence as mens rea. In 1995 a new criminal code was passed, which incorporated two endangerment occupational safety and health offences: one requiring intention or knowledge, another for which negligence suffices.
Despite the eminently practical objective that allegedly underlaid their proposals for legislative change, in the intervening 30 years criminal law theorists have not concerned themselves with analyzing the application of these offenses to see whether they have achieved their objectives. The absence of any empirical study notwithstanding, success is taken for granted and attributed to the preponderant application of the negligence endangerment offence.
To test these assertions, a study of over 6,000 decisions taken between 2000 and 2024 by provincial courts (where more than 95% of these cases end) was conducted. Results show that the contribution of endangerment crimes to the bulk of cases is small (less than 5%) and that the negligent endangerment offence is applied three times less than the one requiring intention or knowledge.
Despite the previous results, the study shows an important increase in the number of criminal court sentences in health and safety at work cases in the 25 years examined. A qualitative study based on the public prosecution service yearly reports and interviews with specialized prosecutors shows that a change in the public prosecution service’s sensibility to these cases and changes in charging practices, coupled with better coordination with other agencies, provide a convincing mechanism for the increase.

Author

• Íñigo Ortiz de Urbina Gimeno, Universidad Complutense de Madrid