DEAN v JOHN MENZIES (HOLDINGS) Ltd
| Jurisdiction | Scotland |
| Judgment Date | 03 October 1980 |
| Docket Number | No. 6. |
| Date | 03 October 1980 |
| Court | High Court of Justiciary |
JC
Lords Cameron, Stott, Maxwell.
Crime—Company—Shameless and indecent conduct—Competency—Whether competent to libel such conduct in a complaint against a body corporate.
A limited company was charged in the Sheriff Court on a summary complaint which set out that the company had conducted itself in a shamelessly indecent manner by selling, exposing for sale and having for sale certain magazines which were said to be indecent and obscene. Pleas were taken by the accused company to the competency and relevancy of the complaint and the Sheriff, holding that it was not competent to prosecute a body corporate for a common law offence, sustained the plea to the competency. The prosecutor appealed.
Held (diss. Lord Cameron) that a body corporate was not, at common law, capable of exhibiting the human characteristics of shameless and indecent conduct, and that it was accordingly incompetent to libel such conduct against a body corporate in a criminal complaint.
John Menzies (Holdings) Limited were charged in the Sheriff Court of North Strathclyde at Dumbarton on a complaint at the instance of Ian Dean, Procurator-fiscal, which set forth that "On 30th January 1979 at the premises occupied by you at 50 High Street, Dumbarton, you did conduct yourself in a shamelessly indecent manner in respect that you did sell, expose for sale and have for sale 64 indecent and obscene magazines as specified in the Schedule annexed hereto, which magazines were likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires." The accused company stated pleas to both the competency and the relevancy of the libel and the Sheriff (Jardine), sustaining the plea to competency, dismissed the complaint.
At the request of the Procurator-fiscal, the Sheriff stated a case for the opinion of the High Court of Justiciary.
The questions of law submitted for the opinion of the High Court were:—"1. In the foregoing circumstances, was I right in holding that the Complaint was incompetent and should be dismissed? 2. If the answer to (1) above is in the negative, is the charge relevantly specified?"
The appeal was heard on 14th May, 25th June and 26th June 1980. The arguments of the parties are summarised in the opinions of their Lordships.
At advising on 3rd October 1980,—
LORD CAMERON.—This is an appeal at the instance of the Prosecutor against the decision of the Sheriff at Dumbarton dismissing as incompetent a complaint at the appellant's instance against the respondents who, as their designation shows, are a limited company, charging them at common law with the offence of "shameless and indecent conduct." The complaint libelled that in premises occupied by them at a certain address in Dumbarton and on a specified date they conducted themselves "in a shamelessly indecent manner in respect that they did sell, expose for sale and have for sale 64 indecent and obscene magazines as specified in an annexed schedule which magazines were likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires. As the Stated Case narrates, but the Minutes of Procedure do not disclose as they should, pleas both to competency and relevancy of the complaint were stated on behalf of the respondents and on 31st October 1979 both pleas were supported in argument by counsel on their behalf. Having heard argument the Sheriff sustained the plea to competency and dismissed the complaint. There was no formal disposal of the plea to relevancy, though it appeared that this plea was argued by counsel for the respondents. From the Sheriff's note however, it would seem that the plea was originally supported on the ground that no crime known to the common law of Scotland was disclosed in the complaint. Counsel subsequently limited his attack to a submission that such a common law charge as that in the complaint could not be competently libelled against a limited company, with a subsidiary submission that it was essential to the relevancy of the complaint, assuming it were competent, that there should be specification of the person or persons within the organisation of the company said to be directly responsible for the actings complained of.
The Sheriff, however, having disposed of the issue of competency, did not consider it necessary further to consider an apparently otiose plea to the relevancy of an incompetent complaint though indicating that he would not have sustained it.
The issue of competency as presented in argument is short, substantial but not simple: it is whether by the law of Scotland a fictional person can be guilty of the common law offence libelled. It is of course a matter of necessary concession and of everyday practice, that such persons can be guilty of statutory offences even of those offences where proof of knowledge or even intention on the part of the accused is an essential element in proof of guilt.
Before I come to deal with the arguments which were presented by counsel I think it is desirable to set out in the simplest form what it is that the respondents are alleged to have done—it is the sale or exposure for sale as a transaction of commerce, presumably in shop premises occupied by them for the purpose of their business, of certain specified magazines. It is the alleged quality of these particular magazines and their consequent effects or potential effects on the minds of the purchaser and reader which constitute the criminal character of what would otherwise be a very ordinary everyday commercial transaction. Such prosecutions in the case of individual shopkeepers are not uncommon and the recent case of Robertson v. SmithSC 1980 J.C. 1 makes it clear that sale to the public or exposure for sale of such literature constitutes a criminal offence in the common law of Scotland.
One obvious consequence of the Sheriff's decision would be that if an individual shopkeeper were to transfer the control of such a business as was conducted by the appellant in Robertson v. Smithfrom himself as an individual to a limited company controlled by him he could escape the penal consequences of his action. I make this observation because, while the present appeal is concerned with the affairs of a large company with, as is well known, many trading outlets, the issue is equally applicable to a "one-man company" operating in a back street in Glasgow.
The submissions for the appellant were presented by the Advocate-Depute in a careful and able argument in which his broad submission was that those directing and controlling the activities of a limited company, being its responsible officers, are persons capable of supplying the "will" of the company sufficient for the company to be able to possess the mens rea required for a common law offence and in particular the offence with which this company is charged in this complaint.
In elaboration of this submission the Advocate-Depute drew attention to the nature of the offence here charged as that has been identified inWatt v. AnnanSC 1978 J.C. 84 and Robertson v. SmithSC 1980 J.C. 1. The general question of the capacity of a corporate entity or fictional person to exercise a will and to form and carry into effect an intent had for long been settled in Scotland as in England. In Gordon v. British & Foreign Metaline Co.UNK (1886) 14 R. 75 the capacity of such a "person" to act with malice was affirmed, and the classic authority of Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd.ELR [1915] A.C. 705 left no room for doubt as to how the law would approach the question of a company's capacity to commit a common law offence and therefore to form the necessary wicked intent. A company's capacity to be guilty of malicious defamation was also recognised in English law: cf. Triplex Safety Glass v. Lancegaye Safety Glass (1934) Ltd.ELR [1939] 2 K.B. 395, per du Parcq L.J. at p. 408, while the case of D.P.P. v. Kent and Sussex ContractorsELR [1944] K.B. 146 showed that in England a company could be convicted of making statements which they knew to be false "with intent to deceive." This was a case of breach of regulation but that did not affect the principle.
There was ample authority in Scotland for the proposition for which he contended—cases such as Clydebank Co-operative Society v. BinnieSC 1937 J.C. 17, Mackay Bros. v. GibbSC1969 J.C. 26, MacNab v. Alexanders of GreenockUNK 1971 S.L.T. 121 and Readers Digest Association Ltd. v. PirieSC 1973 J.C. 42 were all illustrative of the principle that a fictional body could exhibit an intention to act contrary to law and had the capacity to form such an intent and therefore to incur criminal liability, albeit in matters of statutory breach. The case ofTesco Ltd. v. NattrassELR [1972] A.C. 153 illustrated the manner in which the "brain" of a company would be held to operate and how its will and intention would be expressed and demonstrated in action.
Upon the issue of relevancy, in his reply to Mr Kerrigan's attack, the Advocate-Depute maintained that the complaint was sufficiently specific, the time, place and character of the offence being stated there could therefore be no need for any further specification.
This was not a case of vicarious but of direct responsibility, and therefore on the issue of relevancy there was no need to specify in the complaint that the offence had been committed by the hand of a servant. There is no vicarious criminal responsibility at common law, and if his argument on competency were correct, that specification which Mr Kerrigan demanded was irrelevant and unnecessary—whatever might be the difficulties of ultimate proof.
The passage cited by Mr Kerrigan from the opinion of the Lord Justice-Clerk in the case of City and Suburban Dairies v. MacKenna 1918 J.C. 105 at p. 110 had been taken out of its context—a prosecution for breach of Regulation—was therefore obiter and had not in any...
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