4 CAUSATION
89. When the Law Commission published its draft Bill
on Involuntary Homicide in 1996 it included a specific clause
dealing with causation. This stated that a management failure
by a corporation "may be regarded as a cause of a person's
death notwithstanding that the immediate cause is the act or omission
of an individual."[99]
The Law Commission believed that such express provision was necessary
in order to make it clear that the ordinary principles of causation
for homicide were applicable to the corporate offence. Accordingly,
a jury could find that a corporation's management failure was
the cause of death despite an intervention by an individual, for
example the deliberate failure of an unsupervised front-line operator.
The Law Commission argued that "there is a danger that, without
[this provision]
the application of the ordinary rules of
causation would in many cases result in a management failure being
treated as a "stage already set", and hence not linked
in law to the death".[100]
90. The present draft Bill does not include the Law
Commission's original clause, although the Home Office stated
that the "ordinary rules of causation will apply" in
determining whether a management failure has caused a victim's
death.[101] The stated
grounds for this decision are that case law has developed since
the Law Commission reported in 1996 and a separate provision on
causation is no longer needed.[102]
The Government believes that the current position on causation
means that an "intervening act will only break the chain
of causation if it is extraordinary - and we do not consider that
corporate liability should arise where an individual has intervened
in the chain of events in an extraordinary fashion causing the
death, or the death was otherwise immediately caused by an extraordinary
and unforeseeable event".[103]
91. Although some witnesses supported the Government's
position on causation,[104]
a significant number urged that the Law Commission's original
clause should be resurrected in the draft Bill. Disaster Action
warned that without the clause it "may be extremely difficult
for the prosecution to persuade a jury to convict a corporation
of manslaughter".[105]
The British Vehicle Rental and Leasing Association were unsure
whether the draft Bill changed the current common law position
on causation.[106]
92. The Law Reform Committee of the Bar Council submitted
that although the Government had asserted that case law had changed
since the Law Commission's report, the inclusion of a causation
clause "would give statutory effect to the development in
the case law and have the merit of clarity within the provisions
specifically drafted for the purpose of corporate manslaughter".[107]
Furthermore, the Bar Council suggested that including the clause
would support the Government's aim that the management failure
test:
"focuses on the way in which a particular
activity was being managed or organised. This means that organisations
are not liable on the basis of any immediate, operational negligence
causing death, or indeed for the unpredictable, maverick acts
of its employees. Instead, it focuses responsibility on the working
practices of the organisation"[108]
93. Since publication of the draft Bill the Law Commission
has stated that although the clause does add "some value"
they "do not regard this point as one of major importance".[109]
94. Although we agree with the Government that the
courts have stated that only abnormal and extraordinary events
will break the causal chain,[110]
we are not convinced that this principle will be of general application
or applied to cases of corporate manslaughter. Even if the Home
Office is correct in its assertion that case law has developed
and clarified the law of causation, we believe there is merit
in stating the position for the corporate offence on the face
of the legislation. We agree with the argument put forward by,
amongst others, the Bar Council, that, if the common law were
to change, it could change in a direction making it difficult
to secure a conviction for the offence of corporate manslaughter.[111]
We recommend that the Government provide certainty on the law
of causation, as it applies to corporate manslaughter, by including
the Law Commission's original clause in the Bill.
99 Law Commission, Legislating the Criminal code: Involuntary
Manslaughter: Item 11 of the Sixth Programme of Law Reform: Criminal
Law: Report No 237, HC (1995-96) 171, clause 4(2)(b) Back
100
Law Commission, HC (1995-96) 171, para 8.39 Back
101
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 49 Back
102
Draft Corporate Manslaughter Bill, para 50 Back
103
Draft Corporate Manslaughter Bill, para 51 Back
104
Volume II, Ev 47 and 84 Back
105
Volume II, Ev 70 Back
106
Volume II, Ev 14 Back
107
Volume II, Ev 118 Back
108
Volume II, Ev 118 Back
109
Volume II, Ev 262 Back
110
Environmental Agency (formerly National Rivers Authority) v Empress
Car Co (Abertillery) Ltd [1999] 2 AC 22. Back
111
Volume III, Q 81 [Mr Donnellan] Back
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