John Maclachlan V. Procurator Fiscal, Oban
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Carloway,Lady Paton |
| Neutral Citation | [2009] HCJAC 68 |
| Docket Number | XJ269/09 |
| Date | 24 July 2009 |
| Court | High Court of Justiciary |
| Published date | 24 July 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Clarke | [2009] HCJAC 68 Appeal No: XJ269/09 OPINION OF THE COURT delivered by LORD CLARKE in NOTE OF APPEAL by JOHN MACLACHLAN Appellant; against PROCURATOR FISCAL, OBAN Respondent: Under Section 174 of the Criminal Procedure (Scotland) Act 1995 _______ |
Act: Forrest; Semple Fraser
Alt: Bain, QC, AD; Crown Agent
24 July 2009
[1] The appellant has been charged on summary complaint that
"on 20 February 2008 at Upper Soroba Quarry, Oban, Argyll you JOHN MACLACHLAN being a Director in the companies Oban Skip Hire Limited, John MacLachlan Limited, John MacLachlan Quarries Limited and West Highland Gas Limited did knowingly cause controlled waste, namely cardboard, plastics, metals, wooden pallets, tyres, material and an oily fluid to be disposed of in or on said land otherwise than in accordance with a Waste Management Licence in that in that (sic) controlled waste was disposed of by way of burning;
CONTRARY to the Environmental Protection Act 1990, section 33(1)(b)".
Another individual, Susan Helen Maclachlan, understood to be the appellant's wife, appeared on the same complaint charged with exactly the same offence and in her capacity as a director of the four companies referred to in the charge against the appellant.
[2] On 23 February 2009 the appellant challenged the competency and relevancy of the complaint against him, at a hearing, which took place before Sheriff W. D. Small and which focused upon the meaning and effect of three statutory provisions, the terms of which may be conveniently set out at this stage. The first provision in question is section 143 of the Criminal Procedure (Scotland) Act 1995 and in particular sub-sections (1)-(3) which are in the following terms:
"(1) Without prejudice to any other or wider powers conferred by statute, this section shall apply in relation to the prosecution by summary procedure of a partnership, association, body corporate or body of trustees.
(2) Proceedings may be taken against the partnership, association, body corporate or body of trustees in their corporate capacity, and in that event, any penalty imposed shall be recovered by civil diligence in accordance with section 221 of this Act.
(3) Proceedings may be taken against an individual representative of a partnership, association or body corporate as follows:-
(a) in the case of a partnership or firm, any one of the partners, or the manager or the person in charge or locally in charge of its affairs;
(b) in the case of an association or body corporate, the managing director or the secretary or other person in charge, or locally in charge, of its affairs,
may be dealt with as if he was the person offending, and the offence shall be deemed to be the offence of the partnership, association or body corporate; ..."
The second of the two relevant statutory provisions is section 33(1)(b) of the Environmental Protection Act 1990. That section was, at the time of the alleged offence, in the following terms:
"Subject to sub-section (1A), (1B), (2) and (3) below and, in relation to Scotland, to section 54 below, a person shall not -
....
(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of -
(i) in or on any land, or
(ii) by means of any mobile plant
except under and in accordance with a waste management licence."
The last of the three statutory provisions is section 157(1) of the Environmental Protection Act 1990 which is in the following terms:
"Where an offence under any provision of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who is purporting to act in any such a capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
Before the Sheriff it was argued on behalf of the appellant that the complaint was incompetent as it sought to prosecute the appellant as a director of various companies without the companies, or any or one of them, having been previously convicted of the offence libelled or, alternatively, without the company appearing as a co-accused on the complaint. This submission, as the sheriff observes in his Note to this court, proceeded on the footing that the provisions of section 157 of the 1990 Act "prevailed" over section 143 of the Criminal Procedure (Scotland) Act 1995. As regards the offence libelled in this case under section 33 of the 1990 Act, it was contended that an individual company director could only be the subject of a prosecution, in relation to such an offence, if simultaneous proceedings were being taken against the company or if the company had already been the subject of a finding of guilt of the offence in question. The contention was that in a case like the present it was incompetent to proceed against a company director in circumstances where the relevant company was not being proceeded against or where that company had not already been convicted of the "relevant offence". It was said, on behalf of the appellant, that it was the clear intention of Parliament in drafting the 1990 legislation that a director could only be criminally liable if the company of which he was a director had been found guilty of an offence or alternatively if that company was simultaneously prosecuted. Reference was made to the speech of Lord Hope in R v Chargot Ltd (t/a Contract Services & Ors) [2009] 1 WLR 1 para 32, Douglas v Phoenix Motors 1970 SLT (Sh. Ct.) 57, Stair Memorial Encyclopaedia Reissue 7 (in the section dealing with Enforcement of Environmental Law) at para. 113.
[3] Before the sheriff it was furthermore submitted that, in any event, the complaint was irrelevant in that it was so deficient in law as not to "justify calling upon the accused to plead to the charge". The submission went on, as noted by the sheriff, to the effect that if the accused were to be prosecuted in his capacity as a director he should be prosecuted under section 157 of the Environmental Protection Act and not section 33(1)(b). Any relevant complaint libelling a breach of section 157 would require to libel that the company had committed an offence "with the consent and connivance of the director".
[4] On behalf of the Crown the procurator fiscal conceded that before a director could be convicted under section 33 of the 1990 Act, the Crown would require to prove that an offence had been committed by the body corporate of which the accused was a director. The Crown's position was that at the time of the offence libelled in the complaint the appellant was a director in all four companies specified in the charge. Accordingly, if an offence was proved to have been committed by any one of the four companies then, as a director, the...
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