Examination of Witnesses (Questions 500
- 519)
MONDAY 21 NOVEMBER 2005
RT HON
SIR IGOR
JUDGE
Q500 Mr Clappison: The Law Commission's
1996 proposals suggest that the legislation should contain a special
provision on causation, which would clarify that "the management
failure may be a cause of the death, even if the immediate cause
is the act or omission of an individual." The Home Office
is arguing that no special provision on causation is needed in
the Bill because the case law in this area has developed since
the Law Commission reported. Have you any views you can express
to us on that in the light of what you have said about your constraints?
Sir Igor Judge: Yes. I have no
problem with constraints about that issue. What has to be established
for causing death is perfectly simple: that the activities or,
shall we say, the negligence of the senior managers is part of
the cause. If it is minimal, it is minimal, and obviously does
not count, but if it is anything beyond the minimal, then there
is no problem with establishing causation. So if you say a whole
series of factors contributed to this particular death, of which,
shall we say, managerial inefficiency and negligence was only
20 per cent to blame, you would still be able to establish that
that had been a cause of death. So I think the way the Bill is
currently drafted actually meets the Law Commission's concerns,
or at least, is an answer to the Law Commission's concerns.
Q501 Mr Clappison: Thank you. I think
that is very helpful and that clarifies it. How difficult will
it be to prove that a senior manager who delegated responsibility
to others for health and safety matters caused the death of a
worker or member of the public?
Sir Igor Judge: Difficult. There
is no doubt about that. There is nothing to stop a senior manager
delegating to apparently competent staff and, if the apparently
competent staff are people that it was sensible to delegate to,
you can delegate all the way down. I think that is a concern.
The Law Commission, I think, suggested—I may be wrong—that
what you should be looking at is a management failure and that,
of course, goes to the management and organisation of the corporation.
I am not making a policy comment, but I would have thought myself
that might be a better way to avoid a series of "Not me.
I passed this responsibility down", so that you end up with
some very, relatively speaking, junior employee, who suddenly
has to carry the can for what is in effect an unfair assignment
of responsibility to him. Incidentally—again, this has been
drawn to my attention; I cannot claim it is my own research, but
there is quite an interesting Act in Australia which came into
force in 2004, which is called The Industrial Manslaughter Act.
You might just care to get somebody to look at that to see how
they manage the arrangements as between different people who have
responsibilities. If I just give myself a moment to look it up,
Australia has this industrial manslaughter, and you may establish
liability if—do you mind if I just take a moment, Chairman,
to quote it? The company itself has the necessary state of mind
and misconduct attributed to it if, I quote, "expressly,
tacitly or impliedly the commission of the offence has been authorised
or permitted" and that may be established by proving "(c)
that a corporate culture existed within the corporation that directed,
encouraged, tolerated or led to non-compliance with the contravened
law or (d) proving that the corporation failed to create and maintain
a corporate culture requiring compliance with the contravened
law." I am not advocating to you that you should have it,
but if you had some kind of provisions like that, I think it would
meet what I think, if I may say so, is a very reasonable concern.
Q502 Gwyn Prosser: In your opening
remarks you referred to clause 3(2) and the list of factors, and
you brought our attention to a particular factor. Some evidence
we have had from some witnesses suggests that the provision of
a list of factors to prove gross negligence could be a hindrance
rather than assistance to the jury. What is your view?
Sir Igor Judge: I am quite sure
there is no problem about getting the jury to understand what
the principles are. There has to be a duty of care, which as the
Bill says is a matter of law, and the judge will direct them about
that, and a breach of that duty. How bad? It has got to be gross,
falling far below the expected standard. With causing death by
dangerous driving, the test is the same. The test is that the
standard of your driving fell far below the appropriate standard,
and the jury makes up its mind about whether the evidence shows
that that has happened or not. So I am not myself concerned about
that. I think the Bill is in perfectly good shape to deal with
that problem.
Q503 Gwyn Prosser: Would you want
to add to that list of factors? Are there any other factors you
think would be helpful to the jury?
Sir Igor Judge: There is a small
difficulty. I have suggested to the Committee that, with respect,
we need to have the same sort of system to run as between corporate
manslaughter and personal or individual manslaughter. One of the
slight problems with the individual offence is that the judge
ends his directions to the jury about what gross negligence that
it has to be so bad as to go beyond ordinary matters of compensation
and to be stigmatised as criminal. He uses words like that. There
is an argument—which I have rejected, but there is an argument—that
that is circular. How do you know in advance whether a jury is
going to say if it is criminal or not? But it is to get across
to the jury that we are not now dealing with civil remedies; we
are now dealing with crime, with penal consequences for the individual,
prison, if he is convicted. If you use the phrase "falling
far below what can reasonably be expected", you are actually
slightly changing the test about whether it is so bad as to be
criminal, but I do not have a major difficulty because in truth
the two standards elide and there is an equalisation. I do not
think a judge dealing with a case with the individual in the dock
and the corporation in the dock is going to have much difficulty
saying, "Look, what you are after is whether this was that
bad. If you are so satisfied, it was; if you are not, it was not."
Q504 Gwyn Prosser: One of the factors
which the jury is asked to consider, amongst others, is whether
the managers or the company profited from the action or the omission.
We have had some evidence which suggests that would be better
replaced by "benefits" rather than "profits".
Do you have any strong feelings on the use of the words?
Sir Igor Judge: You could use
both almost interchangeably. What you are really getting at is
the company that chooses to turn a blind eye to its responsibilities
in order to make money or profit or benefit. I do not actually
see a great difference myself.
Q505 Chairman: Can I just pursue
that point a little further to make sure that I understand? The
argument that was put to us was that the way the Bill is drafted,
juries might feel that if there is not evidence that a company
did seek to profit, I suppose put crudely to us by some witnesses,
if there is not an email saying, "Go ahead and do that even
though we know it is dangerous. We have got to get our contract
in on time," that juries might therefore feel they could
not convict. Is there any danger of that or is it a situation
where any judge will reasonably direct a jury that they do not
have to actually prove there was an act that was directly designed
to produce profit?
Sir Igor Judge: It is not the
judges you need worry about, and I do not think juries will have
any problem at all with that either. It is a perfectly reasonable
point for the defence to make that there was nothing in this for
the company. It is just the same as saying "There was no
motive for this in the individual; the prosecution have not proved
it." It is an equally good point for the prosecution to make
to the jury "We can show that the reason why this happened
was to make a profit." In the end, as section 3(4) suggests,
the jury has to look at any matters they consider relevant to
the question. I do not think there will be a difficulty getting
convictions. It is a matter of evidence. The evidence is stronger
if you can demonstrate that there was a blatant disregard in order
to make a profit, I would have thought, but it does not mean that
if you cannot demonstrate that, you cannot still show that this
was a company on its uppers, doing its best but still grossly
negligent. I do not have a difficulty.
Q506 Mr Dunne: Can we talk about
the relevant duty of care? We have had slightly conflicting views
expressed as to whether it is appropriate in criminal cases to
use the terminology of "negligence" and "duty of
care" because of the confusions that can arise. The Law Commission
in particular have suggested that there are some difficulties
there. If we were to use their proposals that there was no requirement
that there be a civil law duty of care, what would be the legal
implications?
Sir Igor Judge: There you have
hit, if I may say so, on a point that did rather trouble me about
the direct reference to the law of negligence. If you open up
the standard textbook on the duty of care in the law of negligence
in the civil world, it is not quite as big as that, but it is
a very large amount of literature. The issue has gone to the House
of Lords for decision very many times in the past ten years. I
was very troubled about the possible consequences. However, if
you make this a question of law for the judge, depending on whatever
facts he has to find under section 4(3), I do not think it presents
a problem. I think in truth it identifies that there is a duty
that you are concerned with neglect. It has that strength, provided
it is for the judge to decide whether it is a duty situation.
I think that is an answer to your question. I hope it is.
Q507 Mr Dunne: Thank you. We have
also had some evidence that we do not really need to go much further
than the statutory duties which are comprised in sections of the
Health and Safety at Work Act 1974 sections 2-6. Do you see any
legal obstacles if the Government were to decide to link the offence
to breaches of statutory duties under that Act?
Sir Igor Judge: I think that we
have to appreciate there is a very significant difference between
what looks like a regulatory statute, health and safety, and manslaughter,
which on any view says that this was a killing. I think there
is an important public perception about this and I do not think
we should ignore that. I think there is a public perception that
there are occasions when a killing should result in a conviction
for manslaughter. To say it is all basically covered by the Health
and Safety Act does not seem quite appropriate if the criminal
law is to keep reasonably in step with the way the public looks
at things, and it should. The way in which the link is done seems
to be entirely sensible, if I again may say so, by saying that
when the jury is considering all the different ways in which the
breach might reasonably be described as gross, it directly links
it to the health and safety legislation, but says that is only
one piece of evidence. You may be able to show that there was
a breach of a relevant piece of health and safety legislation
but nevertheless not be guilty of this offence, and you might
well have an indictment—I do not know—which said "Corporation:
count one, manslaughter; count two, failure to comply with whatever
section of the Health and Safety Act." I have no problem
with that—and possibly "Count three, X, the individual,
you did this and so you too are guilty of manslaughter by gross
negligence." Again, I hope that is an answer to your question.
Q508 Mr Dunne: I think so. Thank
you. Another aspect following on from that: we have been given
a list in the Bill by the Home Office in section 4(1) of the categories
in which a duty of care must be owed. Do you see that as limiting
the application of the offence just to those categories?
Sir Igor Judge: It does limit
it. A relevant duty of care is confined to a duty owed by the
corporation to its employees, those who are on its land—it
might well extend to trespassers but those on its land—and
then the supply of goods and services, and carrying on. I think
the width is to be found in 1(c)(ii), "any other activity
on a commercial basis". It seems to me to actually meet the
very broad concern and it goes way beyond employees and occupiers.
I think 4 (1) (c)(ii) is the wide catch all.
Q509 Mr Dunne: We have also had some
issue over the interpretation of the word "supply",
in particular in relation to public bodies that do not necessarily
supply a service; they may provide a service. Do you see any difficulty
in interpreting that in court?
Sir Igor Judge: We could get bogged
down in legal argument about what as a matter of contract law
"supply" amounts to. If you were concerned about it,
I think it would be wise to consider defining what Parliament
had in mind for this, but if you think about it, gross negligence
death, supply by goods—for example you can give somebody
rotten food negligently. I am trying to think of occasions when
this might happen. There could be quite an argument about whether
services were being supplied, but in any event, that would be
almost certainly caught by the "carrying on" by the
organisation "of any other activity".
Q510 Mr Dunne: "Supply"
does not mean for payment? It does not imply payment?
Sir Igor Judge: No, because you
say in terms whether for consideration or not. So, it could be
an organisation handing out freebies, say bad food, negligently.
"Supply" has contractual connotations that are not always
straightforward in the criminal law but we do, after all, cope
with the supply of, shall we say, a bladed knife; holding a bladed
knife out available for somebody to buy. I do not think it is
a major point but I think it is an area which could cause argument.
Q511 Colin Burgon: One of the things
we have picked up from witnesses or respondents is the difficulty
in determining what functions fall within the definition of an
exclusively public function and public policy decisions in the
exemptions to the offence. Drawing on your experience, would you
advise that the Home Office could have provided more clarity in
this area, and if there could have been more clarity, how would
they have been able to do that?
Sir Igor Judge: I am not at all
sure that I am not getting to the area where I actually—and
you put it very nicely to me, but you are really asking me to
comment on a policy issue. I think I would be happier, if it were
not regarded as discourteous, not to answer that question. I think
we really could get into some quite delicate areas, and you have
to bear in mind, in 12 months' time I might be sitting on a case
and somebody may cite to me what I had said to you in support
of an argument one way or another.
Q512 Colin Burgon: If a policy decision
were taken, so therefore you are not actually taking that policy
decision but you are responding to it, and it is not actually
in the draft Bill, to make it possible for an individual to be
guilty of corporate manslaughter as a secondary party, drawing
on your experience, how would you recommend this could be done?
Sir Igor Judge: I think this actually
is an issue of policy, but I am prepared to make this comment
about it. We will have, assuming this becomes an Act, an offence
of corporate manslaughter. You will not have abolished individual
manslaughter, so individual responsibility will remain. I think
that it would be very difficult to persuade anybody to take on
the responsibility of senior manager within your definition if
he were going to be liable to be found guilty for the inadequacy
of the operation as a whole. So you have to make, or Parliament
has to make a policy decision about this, but I do not see the
way that the Act is drafted creates the sort of problems which
could arise from persuading somebody to say in effect—forgive
me for using a colloquialism—"You will be the fall
guy. You are the safety officer/manager or whatever it is. You
are responsible for everything that goes wrong in the organisation."
I do not think anybody would do that job, because you are totally
dependent on the quality of others, and those people not making
mistakes. So your senior manager point seems to me to come back
to the question that I answered Mr Clappison about. I do not think
I can go any further than that.
Q513 Mr Clappison: I think the answer
to this question may be implicit in what you have said already,
but on what you are telling us, it would be possible for a manager
or a member of the company or a senior manager to be charged with
manslaughter on an individual basis whilst the company itself
stood trial for manslaughter. So the company would appear on the
indictment as facing a count of corporate manslaughter, a senior
manager could face, if the evidence justified it, a charge of
individual manslaughter under the existing law on the same indictment.
Is that something which you envisage as being possible?
Sir Igor Judge: I have no doubt
that is possible. The corporate manslaughter count one would be
such and such a company; count two—forget the health and
safety provisions—would be John Smith; count three would
be Bill Jones. If the evidence is there to sustain it, there is
no reason why that should not happen, and there would almost certainly—obviously,
I cannot be totally certain—be a joint trial. The issues
would be the Crown says that John Smith did this and this and
this, and Bill Jones did that and failed to do the other. They
are in fact senior managers; the company has a responsibility
under the law. They are personally responsible for the death.
No, I do not think there is any problem with that as a potential
trial.
Q514 Natascha Engel: This goes to
the heart of this. A lot of the respondents to this inquiry have
expressed quite a lot of concern about restricting the offence
to failures by senior managers and specifically that this will
reintroduce an element of the identification principle, which
has made it so difficult to convict under the current law. Do
you share those sorts of concerns?
Sir Igor Judge: No, I do not share
the concerns as a matter of principle. What I do say though is,
of course, proof that an individual has himself or herself contributed
to the death is difficult, and the more convoluted the company
arrangements are, the harder it is. But as a matter of principle,
there is no reason why, if X has behaved in a grossly negligent
way and caused death, he should not be prosecuted, just like he
would be if he were—and the Chairman is aware of it—a
doctor who had behaved in what the jury found was a grossly negligent
way. That is the law and you are not changing any of that.
Q515 Natascha Engel: So we are not
simplifying it either?
Sir Igor Judge: I think you are
simplifying it for the corporation, but you are not changing the
law about potential liability for the individual who has behaved
grossly negligently.
Q516 Chairman: In terms of the overall
operation of the criminal justice system, it is conceivable, is
it not, in the scenario that Mr Clappison outlined that a company
could be found guilty of corporate manslaughter under the Bill
as it is drafted, implying that a certain level of senior management
had been identified as responsible, but at the same time any individual
corporate manslaughter cases would fail on the same body of evidence.
Sir Igor Judge: Yes.
Q517 Chairman: Does that worry you
in terms of how the public would view the criminal justice system
if that were the outcome?
Sir Igor Judge: It would depend,
if I may say so, how it was presented. We all rather depend on
the newspapers we read, but there is a perfectly logical conclusion
that the corporation, the combination of activities by different
senior managers amounted to corporate manslaughter, but the prosecution
failed to establish beyond reasonable doubt that individual A
himself or herself was grossly negligent to the extent to justify
a conviction for manslaughter. I do not have a great difficulty
with that as a legal concept—and why should we? After all,
people should only be subject to the criminal law if they are
proved to have committed a crime. If the charge is brought and
the jury is not satisfied, then the system working as it should.
Q518 Chairman: The possible difficulties
of explanation stem at root from the decision to include the senior
manager test as opposed to some of the other models that you highlighted
for us earlier.
Sir Igor Judge: Yes.
Q519 Gwyn Prosser: If the Bill becomes
enacted, in future could the very presence of the corporate manslaughter
offence be used as a template to include other criminal offences
such as grievous bodily harm against a corporation?
Sir Igor Judge: I am sure the
answer to that is yes. Whether as a matter of policy there would
be some reason for it would be another question, but yes. On the
other hand, the likelihood is that if you take the example you
gave of grievous bodily harm, actually, there are individual minds
at work in such a plan. There is the chap who eventually uses
the knife or the stick or whatever, but somebody way back there
who may have organised it may be a senior manager, but if you
can establish that Mr Senior Manager actually set this plan in
motion to see off a rival or to exact revenge, the ordinary criminal
law would cover that. So although it could in theory be a template,
I doubt very much if it would extend in that way.
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