§ Mr. Erroll (Altrincham and Sale)
I beg to move, in page 18, line 9, to leave out subsection (6), and to insert:(6) Where an offence under the last foregoing section or any regulation made under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any negligence on the part of any director, manager or secretary or other officer of the body corporate he as well as the body corporate shall be liable to be proceeded against and punished accordingly.Throughout the Bill there are various penalties for contravening the provisions of the Bill. These penalties comprise both fines and imprisonment. The existing subsection (6) has a harsh way of dealing with a particular class of persons who may be caught committing an offence under the Bill. Where a single individual is convicted, he may either be fined or be imprisoned, but a difficulty arises in the case of a body corporate. It is a straightforward matter to fine a body corporate, but it is not possible to imprison them. The subsection has, I imagine, been introduced with the intention of securing the imprisonment of an individual in the body corporate who may be deemed to be responsible for the commission of the offence.
What is particularly bad about the subsection in its unamended form is that it presumes that all the officers in the body corporate are guilty unless each of them can individually and separately prove his innocence. This is plainly a reversal of the tradition of British justice, and is particularly important since prison sentences are involved. I have, naturally, no desire whatever to shield the guilty, as will be seen clearly from the Amendment. Nevertheless, it is plain that by requiring a defendant to prove a negative the burden of proof may well become too heavy and may result in the conviction, not only of the guilty, but also of the innocent.
It would be singularly difficult in some cases to establish within the very wide phrases of the Clause one's complete innocence if it was decided by the Crown to take proceedings. The existing subsection (6) specifies that any member of a body corporate shall be deemed guilty of the offence unless he proves not only 449that the offence was committed without his consent or connivancebut also that he hadexercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions….He may well have exercised such diligence, but it may be extremely difficult for him to prove it, especially in a small company where many of the normal day-to-day transactions are concluded by word of mouth or over the telephone and where no elaborate written records or filed copies of inter-office memos are kept.
The present subsection has appeared in other Acts and we are not seeing it by any means for the first time. It has always been argued by the Government that there are precedents for this presumption of guilt and that, because of the precedents, the bad practice should be allowed to continue. Indeed, it would be possible to produce—I think, in an earlier debate such a list was produced—a list of all the Acts containing this thoroughly undesirable section. I could equally well produce a similar list of Acts without such an undesirable provision, and we could scarcely continue the argument on the basis of two rival lists.
The real point at issue is whether it is desirable to reverse an important British tradition for the sake of the objects of the Bill. I am well aware that there are occasional Acts—and they may have been quoted in previous lists—where the offences are so gravely against the public interest that a reversal of the onus of proof is justified, but surely this is not such a Bill. Here the offences are of a relatively mild nature. They constitute such matters as failure to make returns or to consign fish to where it ought to go—admittedly, sins of omission and therefore difficult matters, perhaps, for the prosecution to prove, but not matters of such great importance that the Government should ask the House of Commons to agree to a Clause which reverses a traditional principle of British justice.
I wish to be constructive, and I have made it possible in the Amendment that, should the Government wish to proceed against an individual as well as against the body corporate, they can do so, but that they can proceed only against the individual who is likely to be guilty of 450 the offence. They cannot sweep everybody into the net and say, "You are all guilty until you can prove your innocence."
As matters of precedent are likely to be raised on this issue, I point out that I am myself using a Clause which has ample precedents. I have taken as my Amendment the exact wording in two of the Government's post-war Acts—for example, the National Insurance Act, 1946—so that if this wording was right for two of the Government's own Acts, promoted by themselves in order to provide the kind of cover which they think is required in this matter, surely it is appropriate to this Bill.
I hope, therefore, that the Government will see their way to accept the Amendment, particularly in view of the amicable atmosphere which has prevailed throughout our discussions on the Report stage. However, it may not be possible for the Government to go the whole way today, as the Amendment has been on the Order Paper for only a few days, and it may be that the matter will be raised again in another place. An assurance of that character would make it possible for us to continue in the same amicable atmosphere which has so far surrounded these proceedings.
§ Commander Noble (Chelsea)
I beg to second the Amendment.
In doing so, I may perhaps appear to trespass into this debate, even though I have a riverside constituency.
§ Commander Noble
I have studied what was said in the Standing Committee and I was a little surprised at the Government's attitude over subsection (6). I thought that my hon. Friends put their case most clearly, and I was sorry that the Government would not at that time agree to reconsider the matter. Tonight, my hon. Friend the Member for Altrincham and Sale (Mr. Erroll) has put forward a very reasonable alternative and has moved it clearly and concisely. I do hope that on this occasion, even if the Government cannot give an answer tonight, they will at least agree to reconsider it, perhaps before this Bill goes to another place, but I very much hope they will agree to it tonight.
§ 7.0 p.m.
§ The Solicitor-General for Scotland (Mr. Douglas Johnston)
The Amendment has been proposed in a most reasonable way but I think it is founded on a false hypothesis. It is founded on the hypothesis that the person against whom a charge is made is required to prove his innocence, there being no evidence then that he is in any way implicated in the offence with which he is charged. But that is not the case. Before a director or any servant of the company can be charged it must be proved, first, that the company committed the offence and, second, that the person charged is a director or secretary or other official of the company.
It is of course true that by a fiction of our law a company has a persona quite distinct from that of its members or officers but a company can only act through its directors and secretary and other officers. There is no difficulty in prosecuting the company and directors and other officers when the act or offence is an act of commission because one can ascertain who did the act. As the hon. Member for Altrincham and Sale (Mr. Erroll) said, the difficulty arises where the act complained of is an act of omission. There it is possible to ascertain that the company has failed to do something it ought to have done but not possible for the Crown or prosecutor to ascertain what particular officer of the company should have done the act.
I will give an example. Great emphasis was placed throughout the debate by all sides on the necessity for the Authority to give directions from time to time on the timing of landings. Supposing the Authority gives directions to a company which owns a trawler that a landing has to be at a particular time and suppose that direction is not obeyed and the trawler enters the harbour to discharge its cargo. One can quite easily prosecute the company, but it is impossible for the Crown to ascertain which director or which person should have given the order to the trawler to delay its landing. Accordingly, what we have done here is to adopt a Clause for which there is ample precedent. It has been found for many years that in prosecuting companies it is necessary to have such a Clause as this. The suggested subsection has never been found satisfactory.
452 In the majority of cases concerned with companies the only persons who have a real knowledge of who is guilty of the act of omission or commission are the directors and secretary of the company. The Crown does not know them and the prosecutor does not know them. I submit that, it having been proved that the company has committed the offence, it is proper that the directors and other officers should show that they themselves were not implicated in the offence. For these reasons I cannot accept the Amendment for the deletion of this subsection or the alternative subsection proposed.
§ Mr. Henderson Stewart
The hon. and learned Gentleman said that the proposal made by my hon. Friend the Member for Altrincham and Sale (Mr. Erroll) had never proved satisfactory. That is rather news, is it not? Has this method been tried?
§ The Solicitor-General for Scotland indicated assent.
§ Mr. Stewart
In what cases, and for what reason has it failed to be satisfactory? I think we ought to know. The second thing the hon. and learned Gentleman said which surprised me was that, according to him, the only persons concerned here are directors. If there were only two or three directors involved, the problem would be fairly simple, but that is not what the Clause says. The Clause says:Where a body corporate is guilty of an offence against this Part of this Act, every person who at the time of the commission of the offence was a director, general manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity.It may be one of a whole string of people. Besides the directors it might include the private secretary, a young girl acting for the time being for the secretary. It might include a clerk, or typist. We are concerned with what the Clause says and when the courts administer the Act they will look at exactly what the Clause says. It is because the Clause says that a whole lot of people are involved—
§ Mr. Stewart
I will read it again:Where a body corporate is guilty of an offence against this part of this Act, every person"—I repeat, "every person",who at the time of the commission of the offence was a director, general manager, secretary or other similar officer"—Let us pause there. Who is a "similar officer"?
§ Mr. Stewart
Will the hon. and learned Gentleman tell us that the "other similar officer" can only be a director, or only a secretary, or general manager? He can be anyone acting in any way like that—[HON. MEMBERS: "No."] If hon. Members opposite regard it as a limited Clause, let them look at the next few words. It includes those people I have mentioned and anyone else acting "in any such capacity."
An hon. Friend who spoke on this matter earlier raised the case of one of his local fishermen's co-operative societies. Precisely the same kind of society exists in one of the East Fife ports. The basis of such a society is a committee with a secretary and his clerk and a couple of men in the office and, perhaps, a couple of men outside as salesmen. They are all in the business. If that company commits an act of omission is everyone on the committee acting on behalf of other people automatically to be regarded as guilty? That is not British justice at all.
I submit that whatever may be the rights and wrongs of the law in the case of the fishing industry, where conditions are not really normal and we have a great many tiny organisations of this kind, this provision should be looked at again. Like my hon. Friend, I think it unnecessary to press for a decision tonight, but because I feel that I speak with some knowledge of the men I represent, I do ask that the Government will look again at this matter. These men feel very deeply concerned about this, and, as one of those who represent them, I feel that we cannot pass over the matter in this way.
§ Sir T. Dugdale
I support what has been said by my hon. Friend the Member for Altrincham and Sale (Mr. Erroll) and by my hon. and gallant Friend the Member for Chelsea (Commander Noble). We had an important contribution from 454 the learned Solicitor-General for Scotland which was answered by my hon. Friend the Member for Fife, East (Mr. Henderson Stewart).
We seem to be leaving the sea for the moment, and white fish in particular, and to be getting into the realm of law. I do not feel at all qualified to stand at this Box and give a legal opinion. All I ask the Government to do is consult again with their legal advisers before this Bill becomes an Act of Parliament. We shall consult with those who advise us in matters of law before this Measure goes to another place and then if necessary our friends in another place will be able to raise the point and we shall hear the final view of the Government on this matter. I appeal to the Minister of Agriculture to meet us in that way.
§ The Solicitor-General for Scotland
With the leave of the House, may I say that the hon. and gallant Member for Richmond, Yorks (Sir T. Dugdale), has put forward, with his usual charm, a most conciliatory plea. I feel that this Bill has gone so well that I should be lacking in courtesy if I did not say that we shall agree to look at it again. But I would say, also, that at the moment my mind is inclined against accepting the alternative offered by the Amendment.
§ Amendment, by leave, withdrawn.