The Adomako case states that it must be shown that the ‘breach of duty caused the death of the victim’ (emphasis added). The courts have now ruled that the principles set out in Environment Agency v Empress Car Company Limited (1) should apply to criminal law cases.

In the Empress case, the appellant had been charged with causing polluting matter to enter controlled waters, contrary to s.85(1) of the Water Resources Act 1991. The company maintained a diesel tank in a yard which was drained directly into the river. The tank was surrounded by a bund to contain spillage, but the company had overridden this protection by fixing an extension pipe to the outlet of the tank in order to connect it to a drum standing outside the bund. The outlet from the tank was governed by a tap which had no lock. On 20 March 1995 the tap was opened by a person unknown and the entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river. The House of Lords held that

‘the fact that a deliberate act of a third party, caused the pollution does not in itself mean that the defendants creation of a situation in which the third party could so act did not also cause the pollution for the purposes of section 85(1)’

This was because in this situation, the possibility of vandalism of this kind was not an ‘extraordinary’ event but ‘a normal and familiar fact of life’. Lord Hoffman said:

‘There is nothing unusual about people putting unlawful substances into the sewage system and the same, regrettably, is true about ordinary vandalism. So when these things happen, one does not say: that was an extraordinary coincidence, which negatived the causal connection between the original act of accumulating the polluting substance and its escape.”

Buxton LJ in R v Finlay (2) - involving the prosecution of a man under section 23 of the offences against the Person Act 1861 for ‘causing’ to administer heroin to a person – summarised the principle of the Empress case in the following way:

‘When the prosecution had identified an act done by the defendant, the court had to decide, particularly when a necessary condition of the event complained of was the act of a third party, whether that act [of the third party] should be regarded as a matter of ordinary occurrence which would not negative the effect of the defendant's act; or something extraordinary, on the other hand which would leave open a finding that the defendant did not cause the criminal act or event.’

In relation to the particular set of facts in Finlay where the defendant had given an injection of heroin do the person who died, but did not inject it himself, the court said:

‘Whether or not the defendant caused heroin to be administered to or taken by the deceased is a question of fact and degree which you have to decide, and you should decide it by applying your common sense and knowledge of the world to the facts that you find to be proved by the evidence. The prosecution do not have to show that what the defendant did or said was a sole cause of the injection of heroin into the deceased. Where the defendant has produced the situation in which there is the possibility for heroin to be administered to or taken by Jasmine Grosvenor, but the actual injection of heroin involves an act on part of another – in this case Jasmine herself – then if the injection of heroin is to be regarded in your view as a normal fact of life, in the situation proved by the evidence, then the act of the other person will not prevent the defendant's deeds or words being a cause, or one of the causes, of that injection. On the other hand, if in the situation proved by the evidence, injection is to be regarded as an extraordinary event, then it would be open to you to conclude that the defendant did not cause heroin to be administered to or taken by the deceased….’

This principle has most recently been upheld in the case of R v Kennedy (3) involving the offence of manslaughter.

The application of this principle has an important bearing on the prosecution of senior company officers – where their conduct is unlikely to be the immediate cause of death. For example, a death of person which was the direct result of the conduct of an untrained and unsupervised worker, could result in the prosecution of a director or senior manager who established a system of work, where the ordinary consequence of that system of work could be lack of supervision and training.

Footnotes
1. [1999] 2 AC 22)

2. [2003] EWCA Crim 3868

3. [2005] EWCA Crim 685