| PARTNERSHIP — Liability of firm — Criminal offence — Indictment charging partnership with offence — Whether properly indicted — Whether individual partners liable in confiscation proceedings — Sea Fishing (Enforcement of Community Control Measures) Order 2000 (SI 2000/51), arts 3, 11(2)
R v W Stevenson & Sons (A Partnership) [2008] EWCA Crim 273; WLR (D) 60
CA: Lord Phillips of Worth Matravers CJ, Owen and Royce JJ: 25 February 2008
Legislation could render a partnership criminally liable as a separate entity from its individual partners. However, confiscation proceedings could not properly be brought against the personal assets of the partners on the basis of the partnership’s conviction.
The Court of Appeal, Criminal Division, so held in dismissing applications by W Stevenson & Sons (A Partnership), fish auctioneers, and its eight partners for permission to appeal against (1) the partnership’s conviction at the Crown Court at Truro (Judge Wassall and a jury) on 19 October 2006 on eight counts of failing to submit a sales note which accurately indicated the quantities and price at first sale of each fish species, contrary to art 3(1)(d) of the Sea Fishing (Enforcement of Community Control Measures) Order 2000; and (2) the partnership’s conviction, following guilty pleas, on 13 April 2007, on 37 further counts of the same offence.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the first issue was whether it was possible to render a partnership criminally liable as a separate entity from the individual partners? The effect of the Interpretation Acts was that where a statute referred to a “person”, unless the contrary intention appeared that word should be read as including a partnership. Whether the context permitted one to read “person” in a criminal statute as including a partnership might depend critically upon whether there was some restriction upon the assets that would properly be available to meet any penalty imposed. Such difficult questions did not, however, arise where the legislation provided express answers to those questions. Their Lordships could see no ground for suggesting that such provisions were not permitted by law or capable of being effective in law. In as much as business activities were conducted in the name of a partnership and the partnership had identifiable assets that were distinct from the personal assets of each partner there was no reason why a partnership should not be treated for the purposes of the criminal law as a separate entity from the partners who were members of it. Did the 2000 Order purport to render partnerships liable as independent entities? Their Lordships had no doubt that it did. Art 11(2) drew a clear distinction between a partnership and an individual partner. Not merely did that make it clear that a partnership could be independently liable, it made it clear that a partner would not be liable unless the offence had been committed with his consent, connivance or due to his neglect. Was the partnership effectively indicted? The Order did not provide that a partnership should be indicted in its partnership name rather than in the name of the individual partners but that was the obvious course. Did the resultant convictions expose the individual partners to liability? The effect of the Order was that proceedings could only be brought against an individual partner if that partner was complicit in the offence committed by the partnership. It necessarily followed that, where a partnership alone was indicted, any fine imposed could only be levied against the assets of the partnership. If individual partners were at risk of being subject to criminal penalties in respect of offences committed by a partnership, then justice would demand that the criminal process should contain provisions designed to enable individual partners to challenge the alleged liability of the partnership. As to confiscation proceedings, the relevant provisions of s 72 and following of the Criminal Justice Act 1988 applied to “an offender”. The individual partners were not “offenders”. Confiscation proceedings could not properly be brought against their personal assets on the foundation of the convictions of the partnership. However, the individual partners had not been convicted in these proceedings and thus had no standing to appeal against conviction and their applications for permission to do so were refused. The partnership had shown no arguable ground for appealing against its convictions and its applications for permission to appeal against conviction were dismissed.
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Appearances: Philip Hackett QC and Jonathan Ashley-Norman (Follett Stock, Truro) for the applicants; Martin Edmunds QC (Solicitor, Department for Environment, Food and Rural Affairs) for the prosecution.
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