Firstly, let’s elevate the discussion of “duty of care” above sales pitches, catchphrases, vendor offerings and poorly understood or defined layman use of the expression.
Secondly, let’s qualify these references for a broader, international audience.
Kryptonite, for those non-Superman fans, is the fictional material that weakens Superman and with prolonged, concentrated exposure, may kill him outright.
Lawyers, criminologists, academics and security risk management professionals use terms and expressions to synthesise concepts and encapsulate ideas and findings.
‘Ultra Vires’ is defined as “acting or done beyond one’s legal power or authority.”
Conversely, ‘intra vires’ is deemed “within the powers” of specified authorities, organisations and even statutory bodies.
In general terms, these Latin phrases relate to what you do have responsibilities for and those which you don’t, as both a private citizen and as a commercial entity.
It varies greatly between countries and even domestic jurisdictions.
Ultra vires ensures clarity, prevents overlapping jurisdictions and eliminates false claims of who should have done what.
Section 17 of the Crime and Disorder Act (1998) in the UK is an example of Ultra Vires.
Experts note there is little evidence of Section 17 being legally invoked within the UK.
It doesn’t mean you “shouldn’t bother”, just that legal implications of non-compliance haven’t translated to significant prosecution or volumes of convictions.
These implications broadly translate to.
(a) liability in private law for breach of a statutory duty and.
(b) liability to judicial review under the doctrine of ultra vires.
This is the exact same issue with “duty of care’.
While the term has become popular in recent years almost to the point of ubiquity, most use it without understanding the context or legal specifics.
As soon as professionals and experts hear “duty of care” they immediately think, “what specific law, legislation or regulation” are you referencing?
Part of the reason for this is that most are numbered, so you can quickly, without confusion or ambiguity, reference this specific term and the context.
Next, when hearing “duty of care”, professionals will want to know or find out exactly what statutory, regulatory or representative authority is responsible for monitoring, enforcement and prosecution of specific breaches?
Is it a corporate law matter, and administrative issue, criminal, civil, and so on?
These qualifiers determine who is responsible for what, the extent of ‘powers’ and where violations or prosecutions relating too said matters are presented.
So, when you hear anyone say “duty of care”, ask them…..
“What specific law, the number and liability under the doctrine of ultra vires”?
If they don’t know, or the answer is “vague”, you are not communicating with a lawyer, criminologist or security risk management professional.
We recommend you communicate with these professionals before you believe another word relating to ‘duty of care”.
The reason this is an essential discussion is that these same communications will be had, long before anyone appears in a courtroom or any attempts at prosecution are undertaken.
Moving on from the technical and legal context, let’s now explore why prospective ‘offenders’ consider committing crimes.
This relates to why managers and personnel within a company might break the laws relevant to intra vires.
Famed criminologist, Professor Ronald Clarke, way back in 1997 identified 4 main considerations in the minds of prospective “offenders’, that go through their minds at some point before they break the law.
1. What is the risk of being caught;
2. How easy is it to commit the offence;
3. What is the perceived reward;
4. and if I am caught, how severe is the subsequent punishment likely to be?
The reason we have included this reference is that it is the very same series of questions managers are asking themselves when it comes to risk management and “duty of care”.
Section 17 of the Crime and Disorder Act is a great example of low convictions, low motivations to comply because “I won’t get caught”.
We don’t endorse such behaviour but clearly, it is going on.
Pursuit, purchase and implementation of “solutions” in the name of ‘duty of care” are therefore clearly a falsehood, supported by sellers, not professionals.
This, in turn, has created an iatrogenic effect on many companies and managers.
Iatrogenic being that which relates to ‘illness caused by medical examination or treatment’.
Chasing ‘duty of care’ agendas creates the same result, less resilience and greater risk exposure.
To bring this a full circle, now let’s compare this with everyday practices and accepted norms that result in limited improvement or conversely, do more harm than good, let’s quickly look at two.
Self-scan checkouts and electronic article tagging.
Expert research and analysis has found self-scan checkouts, growing on popularity, has a neutral to negative impact on inventory shrinkage and loss, despite the claims of benefits.
You can find this research in the 2011 Security Journal, Special Edition.
Likewise, electronic article tagging, the type that is stitched into clothing by the manufacturer, not the hard plastic one added in the store; researchers found that when exclusively used resulted in up to a 250% increase in losses and inventory shrinkage.
You can find the research paper in the Journal of Applied Security Research, 2011.
See what happens when you take everyday, accepted, ubiquitous practices, inclusive of elaborate sales pitches, and apply it to just a little professional, legal and scientific rigour?
On that note, we will end this information session here.
Intelligent business decisions based on verifiable and analysed research.
Thank you for watching.