The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act 1984.
The judge confused or elided two quite separate concepts, namely (a) the ‘identification’ principle which is used to identify the directing mind and will of a corporate body and (b) the so-called ‘three-pronged test’ governing the admissibility of acts and declarations made by one co-conspirator in the absence of another. In doing so, the judge fell into error.
The acts and declarations of one conspirator in furtherance of the common design may be admissible against a co-conspirator. This is so whether or not the evidence is hearsay evidence, because such evidence is an exception to the rule against hearsay.
‘ There is no question of only one human mind being implicated and, as against the company, the evidence of the directing minds is admissible as direct evidence against the company. The only relevant principle or test to be applied as between BK and A Ltd was the ‘identification’ principle, i.e. proof of the guilt of the directing mind and will (BK) was probative of the guilt of the corporation (A Ltd). Thus, insofar as the diary entries of BK were probative of his guilty state of mind at the relevant time, they were relevant and admissible also to prove the guilt of A Ltd, since he (BK) was a directing mind and will of A Ltd. In our judgment, the judge should have admitted the diary entries of BK on this simple basis.’
Sir Brian Sir Brian Leveson P QBD, David Richards LJ, Haddon-Cave J
[2016] EWCA Crim 1469
Bailii
Police and Criminal Evidence Act 1984 78, Criminal Justice Act 2003 58 118
England and Wales
Citing:
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – Regina v McDonnell 1966
Bristol Assizes – the defendant was indicted, inter alia, with two counts of conspiring with a company. Each count concerning a separate company. The defendant was the ‘sole person in either of the companies . . responsible for any of the acts of . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Cited – Meridian Global Funds Management Asia Ltd v The Securities Commission Co PC 26-Jun-1995
(New Zealand) Lord Hofmann said: ‘There is in fact no such thing as the company as such, no ‘ding an sich’, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the . .
Cited – Regina v St Regis Paper Company Ltd CACD 4-Nov-2011
The court was asked as to the extent which the appellant, St. Regis Paper Company Limited, could be held criminally liable for intentionally making a false entry in a record required for environmental pollution control in its application to offences . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Updated: 24 January 2022; Ref: scu.570714