![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Criminal Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> W Stevenson & Sons (A Partnership)& Anor v R [2008] EWCA Crim 273 (25 February 2008) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2008/273.html Cite as: [2008] Bus LR 1200, [2008] EWCA Crim 273 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2008] Bus LR 1200] [Help]
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TRURO
His Honour Judge Wassall
T20050162
Strand, London, WC2A 2LL |
||
B e f o r e :
THE HONOURABLE MR JUSTICE OWEN
and
THE HONOURABLE MR JUSTICE ROYCE
____________________
W. Stevenson & Sons (A Partnership) And Julian Bick |
1st Applicant 2nd Applicant |
|
- v - |
||
R |
Respondent |
____________________
Martin Edmunds QC for the Respondent
Hearing date: 13th February 2008
____________________
Crown Copyright ©
Lord Phillips of Worth Matravers CJ
Introduction
"24. Prosecuting a partnership does not incorporate it, any more than suing a partnership in the civil courts incorporates it. It is a convenient means of identifying the body of partners.
25. Where the legislation refers to a 'person' the Interpretation Act 1978 makes it clear that 'person' includes a body of persons corporate or unincorporate' (see above). Therefore the naming of the Partnership as Defendant includes the 'body of persons' who are partners.
26. The Partners have chosen not to incorporate and therefore cannot claim the limited liability of a limited company (albeit that the Court has power to lift the veil in appropriate cases involving corporate defendants).
27. They have been partners in a 'course of criminal conduct' such that the issues of 'benefit' and 'realisible assets' must necessarily extend to the individual partners."
The Order
"11.-(1) Where any offence under article 3 of this Order committed by a body corporate is proved to have been committed with the consent or approval of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to be proceeded against and punished accordingly.
(2) Where any offence under article 3 of this Order committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of the offence and liable to be proceeded against and punished accordingly.
(3) Where any offence under article 3 of this Order committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the association or any member of its governing body, he as well as the association shall be guilty of the offence and liable to proceed against and punished accordingly. "
The grounds of appeal and the standing of the applicants.
Partners the true defendants
i) The indictment was a nullity as it failed to identify the individual partners as defendants.
ii) The arraignments were a nullity as the partners did not plead to the indictments.
iii) The partners were deprived of all the protections of a fair trial in that they were 'convicted by stealth'.
iv) The conviction of the partners was obtained by an abuse of process in that the prosecution expressly disavowed the prosecution of the partners in their personal capacity.
Partnership as intended defendant
v) The arraignments were nullities in that no statutory basis existed for counsel to enter pleas on behalf of the Partnership.
vi) The convictions were nullities in that they were secured against an entity that had no separate legal status.
The prosecution case
The procedural conundrum
The issues
i) Is it possible for legislation to render a partnership criminally liable as a separate entity from the individual partners? If so:
ii) Does the Order purport to do so? If so:
iii) Was the Partnership effectively indicted under the six indictments? If so:
iv) Were the pleas of guilty that were entered on behalf of the Partnership effective? If so
v) Do the resultant convictions expose the individual partners to liability?
Is it possible to render a Partnership criminally liable as a separate entity from the individual partners?
"4 Meaning of firm
(1) Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm, and the name under which their business is carried on is called the firm-name.
(2) In Scotland a firm is a legal person distinct from the partners of whom it is composed, but an individual partner may be charged on a decree or diligence directed against the firm, and on payment of the debts is entitled to relief pro rata from the firm and its other members.
5 Power of partner to bind the firm
Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner.
…..
6 Partners bound by acts on behalf of firm
An act or instrument relating to the business of the firm done or executed in the firm-name, or any other manner showing an intention to bind the firm, by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners.
Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments.
…..
9 Liability of partners
Every partner in a firm is liable jointly with the other partners, and in Scotland severally also, for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied, but subject in England or Ireland to the prior payment of his separate debts.
10 Liability of the firm for wrongs
Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act.
…..
12 Liability for wrongs joint and several
Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein becomes liable under either of the two last preceding sections.
…..
20 Partnership property
(1) All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement."
"(e) Unincorporated bodies
An unincorporated association is not a legal person at common law and therefore could not incur criminal liability though its members could. This is still the position for common law offences. Statutory offences are different. The effect of the Interpretation Act 1889 was that in all enactments relating to offences, whenever passed, the word 'person' includes bodies corporate (s2) and, in enactments passed after 1889, both bodies corporate and unincorporated (s19). The Interpretation Act 1978 preserves this position. Since 1889 unincorporated bodies have been able to commit any offence under an enactment passed after 1889 which makes it an offence for a 'person' to do or omit to do anything which an unincorporated body is capable of doing. The potential liability of unincorporated bodies seems to have been little noticed. In Attorney-General v Able Woolf J, dealing with an alleged offence under the Suicide Act 1961 said, 'It must be remembered that the [Voluntary Euthanasia Society] is an unincorporate body and there can be no question of the society committing an offence'; but since the offence may be committed by 'a person' it seems that it may be committed by an unincorporated body. An unincorporated body, being the registered keeper of a vehicle, was held capable of liability as a 'person' to fixed penalties for illegal parking under the Transport Act 1982. Sometimes statutes have made express provision for the liability of unincorporated bodies but it seems that this is unnecessary when the word 'person' is used in the definition of the offence.
When an unincorporated association is prosecuted, presumably the court must proceed by analogy to the law relating to corporations. Such associations have officials corresponding to the controlling officers of corporations and it is inconceivable that the association is liable for the act of any one of its members who has no part in the general management of its affairs."
"(1) Any person who, in the course of a trade or business,-
(a) applies a false trade description to any goods; or
(b) supplies or offers to supply goods to which a false trade description is applied; shall…be guilty of an offence"
The offence had been carried out by one of two partners in the course of their business as partners in a firm called 'the Wholesale Car Co'. The other partner was not complicit in what he had done. An information was preferred, not against the firm, but against each of the two partners. The Divisional Court held that each had been properly charged. Lord Widgery CJ said:
"Partners carrying on business jointly, jointly supply vehicles which it is the business of that partnership to sell. I cannot see any answer to the proposition that the defendant was a joint supplier."
"76(4) If an offence committed by a partnership is proved-
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on his part, the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) In subsection (4) 'partner' includes a person purporting to act as a partner.
(6) If an offence committed by an unincorporated association (other than a partnership) is proved –
(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or
(b) to be attributable to any neglect on the part of such an officer or member, the officer or member as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.
(7) In this section and section 77 'offence' means an offence under any provision of this Act.
77 Offences committed by partnerships and other unincorporated associations
(1) Proceedings for an offence alleged to have been committed by a partnership shall be brought in the name of the partnership (and not in that of any of the partners).
(2) Proceedings for an offence alleged to have been committed by an unincorporated association (other than a partnership) shall be brought in the name of the association (and not in that of any of its members).
(3) Rules of court relating to the service of documents shall have effect as if the partnership or unincorporated association were a body corporate.
(4) In proceedings for an offence brought against a partnership or an unincorporated association, the following provisions apply as they apply in relation to a body corporate-
(a) section 33 of the Criminal Justice Act 1925 (c.86) and Schedule 3 to the Magistrates' Courts Act 1980 (c.43);
(b) sections 70 and 143 of the Criminal Procedure (Scotland) Act 1995 (c.46);
(c) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15(N.I.)) and Schedule 4 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)).
(5) A fine imposed on a partnership on its conviction for an offence is to be paid out of the partnership assets.
(6) A fine imposed on an unincorporated association on its conviction for an offence is to be paid out of the funds of the association."
Does the Order purport to render partnerships liable as independent entities?
Was the partnership effectively indicted under the six indictments?
Do the resultant convictions expose the individual partners to liability?
Conclusion