The Jersey Law Review - October 2002

SHORTER ARTICLES AND NOTES

DON'T PROSECUTE ME, I'M A COMPANY

Alan Binnington

Can a company commit a crime?

Companies are routinely prosecuted before the Royal Court for matters such as infractions of Health and Safety at Work legislation, breaches of the Island Planning Law and the like. There is no doubt that companies can commit criminal offences.  Even where a statute creating such an offence does not expressly refer to a company, Article 3 of the Interpretation (Jersey) Law, 1954 provides that -

"In the construction of every enactment relating to a punishable offence, whether passed before or after the commencement of this Law, the expression "person" shall, unless the contrary intention appears, include a body corporate."

The purpose of this article is therefore not to consider whether offences can be committed by corporate bodies but rather whether the procedure for trial before the Inferior Number of the Royal Court which, it is suggested, requires a defendant to be physically present to enter his plea in criminal proceedings and to hear and see the evidence given against him, is consistent with the court's undoubted acceptance that a company may be prosecuted before it.

Presence at plea

It is said that the Royal Court derives its jurisdiction from the Constitutions of King John, Article 12 of which provided that -

“Item quod nullus debet imprisonari in castro, nisi in casu criminali, vitam vel membrum tangente et hoc per judicium duodecim coronatorum juratorum sed in aliis liberis prisonis ad hoc deputatis."^[01]

A similar theme is to be found in the sixth chapter of the Grand Coutumier which dealt with "justicement" and stated (in translation) :

“King Philip established a law in Normandy ordering all bailiffs to swear that they would faithfully observe that no one should be put in prison or confinement except for cause  appertaining to the plea of the sword or for cause involving the peril of life and limbs. And that if anyone were taken up for any other cause he should be set free (without taking from him money or gain) upon his giving sufficient bail that he would appear at the term appointed.”^[02]

Given the fact that  limited liability companies were unheard of at the relevant time it is perhaps not surprising that these texts refer to the accused as a physical person. However, by the 19th century, when the limited liability company certainly did exist, albeit  in somewhat fewer numbers than now, we find a similar emphasis. Thus, the Loi (1864) reglant la procedure criminelle ("the 1864 Law")^[03] provides, at article 24, that when a plea of guilty is entered in the Royal Court the court is under a duty to remand that person either on bail or in custody -

"Si l'accusé plaide non-coupable, il sera constitué prisonnier, mais pourra, s'il y a lieu, être admis à caution, la Cour fixant le montant du cautionnement."

Similarly, in article 72, we find the requirement for the physical presence of an accused throughout the trial -

"L'accusé sera présent aux débats et à tous les jugements qui le concernent, et le Verdict de l'enquête sera rendu en sa présence."

The question as to how a company can be "present" during a criminal trial is the root of the problem.

Infractions

The 1864 Law was principally concerned with the prosecution of crimes and délits or common law offences and not with contraventions or statutory offences. It is therefore necessary to consider how these were dealt with in earlier times.

In Hemery and Dumaresq’s, A Statement of the mode of proceeding and going to trial in the Royal Court of Jersey^[04] there were said to be two methods of prosecuting infractions –

 “in the first place by stating the offence to the court ... and by that means obtaining an act for the offender to be apprehended and brought before the court when the transgression is of the more serious kind. Or by signing a bill against him which states the particular ordinance he has transgressed and call him to undergo the penalty or punishment. ...When the accused pleads not guilty an information ... takes place against him. ”

Article 12 of the Constitutions of King John and the sixth chapter of the Grand Coutumier are then cited by Hemery and Dumaresq in support of the proposition that “for crimes concerning which there is danger of life or limb the offenders are to be put in prison and held fast, that those actions are called criminal for which a man may lose life or limb, that others are called simple actions because the defaulter is simply chastised for them as a child with a rod”. In the former cases Hemery and Dumaresq state that the accused person is required to be present during the trial and is remanded to prison when not in court.

Pipon and Durell, in their submissions on the same subject also state that on the prisoner being brought before the court if “the offence is not of a nature so heinous as to incur a corporal punishment ... he is admitted to bail, as it seems to be the disposition of the 12th Article ... otherwise he is fully committed”. This procedure is distinguished by Pipon and Durell from cases which are not “strictly criminal, that is which do not incur a statutory or corporal punishment”.

In Le Quesne's  A Constitutional History of Jersey,^[05] the then practice was summarised as follows -

“If in a minor offence the person accused denies the facts alleged in the report against him, the case is sent to proof and he to prison unless he can produce bail for his appearance and good conduct. ... This mode of proceeding cannot be followed when the accusation is of a nature to be brought before a jury. The rule formerly seems to be that offences which did not incur a corporal punishment could be tried by the Court without a jury; but if the accusation is of a more serious nature than these, if it is something more than a mere disturbance of the peace, the attorney-general, on presenting the report of the constable or centenier, also produces a written act of accusation, to which the prisoner may put in any plea he may think proper. ... On a plea of not guilty being put in and recorded, the prisoner is sent to gaol and the attorney-general is allowed to prosecute, or according to the words used, est permis d’informer.^[06]” 

When the Royal Commissioners of 1847 were taking evidence they put to the then Solicitor General, Mr J.W. Dupré, the question “Is bail ever required in cases when a party is summoned?" He answered " If a party charged is merely summoned, he is not bound to be put on bail. Bail is only required where a person is attached”^[07]. Mr Dupré emphasised that in all other cases the accused was remanded on bail or in custody once the trial before the Inferior Number had started.^[08]  However proceeding by way of summons was restricted to cases where the fine was fixed by law, for, as the Commissioners stated -

“… when the offence which is brought before the Inferior Number is created by a legislative act, the accused party is brought before the Court by an acte de saisie, or signification, issued on the application of the Procureur Général, if the punishment be, wholly or in part, imprisonment, or if it be a fine at the discretion of the Court: but, if it be a fine fixed by the law, the accused is served by the prévôt with a bill or summons from the Procureur; and in this case, if he makes default in appearance twice, he is condemned.”^[09]

The Report of the Royal Commissioners of 1847 suggests that all criminal  proceedings took place in the presence of the accused person who was entitled to hear the witnesses against him. This appears to have applied to cases brought before the Inferior Number as well as to cases brought before the Full Court.

This conclusion was supported by each of the  witnesses who gave the evidence on this topic. As Sir John de Veulle, Bailiff, asserted^[10]: "The party accused is allowed to hear all the evidence against him". “Not a single witness can be heard in his absence or that of his counsel ...”  The Law Officers confirmed that “the party accused is always present when the evidence is taken against him.”^[11]

It would therefore seem that the requirement for physical presence is equally applicable in the case of infractions as it is to common law offences.

A comparison with civil proceedings

The need for physical presence on the part of the person accused in criminal proceedings means that, if not present, he may not appear through the intermediary of an advocate. Rule 8/3 of the Royal Court Rules 1992, which permits a party to appear through an advocate, applies only to civil proceedings.

The effect of the requirement of physical presence

Under English law provisions of substantive or procedural criminal law cannot be applied to corporate persons where the punishment or procedure provides for physical presence, imprisonment or other bodily punishment.[12]

This principle is well established. It was illustrated in  R. v The Birmingham and Gloucester Railway Company^[13]where Parke B. indicated that since a company could only appear by an attorney,  and a defendant was not entitled to appear by an attorney at an assize court, an indictment could not be tried before such a court. The problem was resolved in that case by removing the indictment into the High Court for trial (a  defendant could appear in the High Court through an attorney). Unfortunately this route is not available in Jersey by reason of Rule 8/3 of the Royal Court Rules (supra).

Under English law where the customary process is personal and the only method of compelling attendance is by proceedings against the person, in the absence of any enabling statute, proceedings cannot be brought against a corporation.^[14] It is difficult to see why the position should be any different in Jersey.

The principle was  illustrated in R. v Daily Mirror Newspapers Limited^[15].  The English Court of Appeal there held that a committal for trial under a warrant of commitment, which  required the accused person to be taken into custody, could not be valid and effective against a limited company. The decision in Daily Mirror Newspapers led to the enactment of section 33(3) of the Criminal Justice Act 1925 which provides that -

"On arraignment of a corporation, the corporation may enter in writing by its representative a plea of guilty or not guilty, and if either the corporation does not appear by a representative or, if it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty."

By virtue of section 33(6) -

"...the expression "representative" in relation to a corporation means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of a corporation is by this section authorised to do but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any court for any other purpose."

The decision in Daily Mirror Newspapers cannot be distinguished simply by the assertion that a defendant has not been committed for trial. In The State v O’Leannain^[16] the High Court in Ireland acknowledged that a body corporate could be summoned for trial. However the Court held that the procedure for hearing any case must be analysed for the purpose of determining whether it contemplated the cases of companies. In that case the Court held that a statutory requirement for the evidence to be taken “in the presence of the accused” could not be construed as dealing with anything other than an individual person. Similarly the Court could not construe the right to give evidence as extending to an inanimate person. Provisions relating to bail were, according to Murnaghan J, “impossible to construe ... so as to cover the case of a body corporate.” Murnaghan J drew particular attention to the need for some provision similar to section 33(3) of the Criminal Justice Act 1925 to provide a mechanism for the trial of a corporation in Ireland.

Conclusion

It would appear to be arguable that the position in Jersey is the same as that encountered in England in 1923 and in Ireland in 1955. No proper procedural provisions have been made for the trial of corporations. No statutory provision equivalent to section 33(3) of the Criminal Justice Act 1925 exists.  The fact that companies have been prosecuted for years in Jersey arguably  may not confer on the courts a jurisdiction that it does not otherwise possess.

It is to be emphasised that this argument is procedural and not substantive. It is no part of this argument that a company cannot be guilty of a crime. Furthermore, that the court has in the last century or so accepted that companies are amenable to its criminal jurisdiction is incontrovertible. Precisely how they have done this, in the light of the case law in England and Ireland is something of a mystery.  It may however be worth considering an amendment to the Royal Court Rules to place the matter beyond doubt, if only to silence the cry that forms the title of this article.

Alan Binnington is an advocate of the Royal Court of Jersey and a partner in Mourant, du Feu & Jeune, P.O. Box 87, Jersey, JE4 8PX.

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