R v W Stevenson & Sons (A Partnership)
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 2008 |
| Neutral Citation | [2008] EWCA Crim 273 |
| Docket Number | Case No: 200605802 B5, 200605804 B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 February 2008 |
[2008] EWCA Crim 273
In The Supreme Court Of Judicature
COURT Of Appeal (Criminal Division)
On Appeal From The Crown Court At Truro
His Honour Judge Wassall
T20050162
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
The Honourable Mr Justice Owen and
The Honourable Mr Justice Royce
Case No: 200605802 B5, 200605804 B1
Philip Hackett QC and Jonathan Ashley-Norman for the 1st and 2nd Applicants
Martin Edmunds QC for the Respondent
Hearing date: 13th February 2008
Lord Phillips of Worth Matravers CJ
Introduction
These applications have been referred to the full court by the Registrar. The first applicant ('the Partnership') is a partnership of which the third to the tenth applicants are the partners. The second applicant 'Mr Bick' was an employee of the Partnership. The Partnership is based at Newlyn in Cornwall. The business of the partnership includes auctioning fish. Mr Bick was the auctioneer. All ten applicants have, at all material times, made common cause and shared the same legal representation.
The Partnership was indicted under the description 'W. Stevenson & Sons (a partnership)' under six indictments. The prosecutions were brought by the Department for Environment, Food and Rural Affairs ('DEFRA'). The charges were brought under the Sea Fishing (Enforcement of Community Control Measures) Order 2000 ('the Order'). Each charged the Partnership with failing “to submit a sales note which accurately indicated the quantities and price at first sale of each fish species” contrary to Article 3(1)(d) of the Order. The significance of this offence was that it facilitated the evasion of fishing quotas.
The first to be tried was the third of the six indictments. Mr Bick was charged under that indictment with aiding and abetting the Partnership. The charges related to catches of fish brought in by the vessel 'Carol H' and charges of breaches of the Order were also brought against the Master and the owners of that vessel. The defendants pleaded not guilty, that plea being entered for the Partnership by their counsel. On 19 October 2006, after a two week trial in the Crown Court at Truro before HHJ Wassall and a jury the Partnership was convicted on eight counts and Mr Bick was convicted on four counts.
The Partnership and Mr Bick applied for permission to appeal against these convictions on 15 November 2006. The ground of appeal settled by counsel then acting for them related to a ruling made by the judge on the admissibility of certain documentary evidence. On 8 February 2007 the Registrar received a duly completed Notice of Abandonment on Form A from both applicants together with a covering letter from their solicitors confirming that 'our clients form the view that at the current time they should abandon their appeal'
In March 2007 DEFRA decided to seek confiscation orders pursuant to the provisions of section 71 of the Criminal Justice Act 1988. They called on the assistance of the Asset Recovery Agency to assist in this endeavour. On 28 March 2007 search warrants were executed at the business premises of the Partnership and at the home address of the third applicant. At a hearing on 2 April 2007 before Judge Wassall a disclosure order was sought that sought disclosure by all eight partners of their personal assets. In a note prepared for that hearing by Mr Edmunds QC on behalf of the prosecution it was submitted that this was relevant both to the benefit obtained by 'the defendant' and to 'the defendant's realisable assets'. The note explained that the prosecution had been brought against the Partnership, but concluded as follows:
“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.”
Counsel for the Partnership and the partners protested vigorously that this was at odds with the basis upon which the prosecution had been conducted, for none of the individual partners had been indicted and the prosecution had made it quite plain that, while the Partnership was indicted none of the individual defendants was a defendant. The Judge made the disclosure order sought none the less. In doing so he stated that he was not “tying myself to making decisions now which pre-empt legal argument.”
A hearing was fixed for 13 April 2007 for re-arraignment of The Partnership on the remaining five indictments, which contained 37 counts of the same offence. These did not involve Mr Bick. Counsel stated that he had express instructions from the Partnership to enter pleas of guilty.
The issue of disclosure was again raised. It was argued that the court could not make orders against the individual partners. The judge ruled that he had jurisdiction to make such orders inasmuch as the Partnership did not have a separate legal personality from the partners who made it up.
One might have expected the individual partners to stick to their guns and to continue to challenge the attempt to treat them as if they were offenders who had been convicted and were, in consequence, susceptible to confiscation proceedings. Instead they decided to attack, root and branch, the criminal proceedings that have given rise to the confiscation proceedings. They have done so by applying, both in the name of the Partnership and in their own names for permission to appeal against conviction. This course raises procedural questions of some complexity, to which we will come shortly. First, however, we must refer to the Order that has given rise to these proceedings.
The Order
The Order sets out in a schedule a number of Community fishing control measures contravention of which constitutes an offence, together with a list of persons liable in each case (eg the owner and the master of the fishing vessel concerned). The measure in respect of which the Partnership was convicted was the requirement under Article 9 of Regulation 2847/93 “where first marketing of fishery products is carried out by an auction centre…to submit a completed sale note within 48 hours of sale”. Liability was imposed on the Partnership as “the first seller of the fish”.
Paragraph 11 of the Order provides:
“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.
Paragraph 11 (2) draws a clear distinction between a partnership and the partners of which it is comprised. It imposes strict liability on the former but only imposes liability on the latter if complicit in the offending. The primary submission of the third to the tenth applicants is that it is simply not possible to treat a partnership as an independent legal entity in this way. There is no distinction in law between a partnership and the partners who are members of it. Indicting the Partnership meant that the individual partners became the subject of the prosecution. Conviction of the Partnership meant that the individual partners were convicted. Thus, so the partners submit, they have standing to apply for permission to appeal against conviction. Alternatively they claim that they should be permitted to align themselves, as 'interested parties', with the application made by the Partnership.
Some of the grounds of appeal are premised on the applicants' primary contention that the individual partners were the true defendants. Others treat the Partnership as being the intended defendant. We shall re-order and, to a degree, reformulate the grounds in order to distinguish between the two and to reflect the oral argument before us.
Partners the true defendants
i) The indictment was a nullity as it failed to identify the individual...
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