APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Drummond Young
C.G.B. Nicholson,
C.B.E., Q.C.,
|
[2006]
HCJAC 51
Appeal Nos: XJ130/06
XJ131/06
OPINION OF THE COURT
delivered by LORD DRUMMOND
YOUNG
in
NOTE OF APPEAL
under section 174(1) of
the Criminal Procedure (Scotland) Act 1995
by
JAMES ALISTER AITKENHEAD
and ROBERT STANLEY STRANG STEEL
Appellants;
against
PROCURATOR FISCAL, Selkirk
Respondent:
_______
|
Act: Dewar, Q.C., Mitchell; Simpson &
Marwick, Edinburgh
Alt: Clancy, Q.C., A.D.; Crown Agent
4 July 2006
[1] The
appellants face a complaint at Selkirk Sheriff Court libelling two charges of
contravention of the Health and Safety at Work etc Act 1974 and the Management
of Health and Safety at Work Regulations 1999.
Each charge is in two parts, libelled in the alternative. The charges arise out of the death of Douglas
John Armstrong, who at the time was undertaking the duties of the head
gamekeeper of the Philiphaugh Estate.
The proprietors of the Philiphaugh Estate are the Philiphaugh
Trust. It is a matter of agreement that the
appellants are the trustees of that trust.
[2] The instance
of the complaint, in its original version, bore to be against James Alister Aitkenhead,
Robert Stanley Strang Steel and the Philiphaugh Trust. The part of the charges that is critical for
the present appeal was identical in each of the charges; consequently the first
alternative of the first charge may be taken as an example of all of the
charges. In its original version, that charge was in the following terms:
"Between 18 October 2004 and 7
December 2004, both dates inclusive at Philiphaugh Estate, Harehead Hill,
Selkirk, you JAMES ALISTER AITKENHEAD and ROBERT STANLEY STRANG STEEL as
individuals and as trustees of the Philiphaugh Trust and the said PHILIPHAUGH
TRUST being an employer within the meaning of the aftermentioned Act did fail
to ensure the health, safety and welfare at work of your employees, so far as
was reasonably practicable, in that you did did [sic] fail to maintain said place of work which was under your
control in a condition that was safe and without risks to health in that you
did not provide any means of communication to your lone workers nor have in
place a safe system of work whereby your lone workers were in a position to
contact you whilst undertaking their duties nor was there any system in place
whereby you ensured the health and safety of your lone workers whereby there
was no system to ensure that they safely returned from their duties each day
and if they failed to do so an alarm could be raised, and in particular to the
late Douglas John Armstrong in that on 18 October 2004 he undertook the duties
of the head gamekeeper namely pheasant feeding and whilst doing so had an
accident as a result of which he was severely injured and died from those
injuries and he had no means of communicating with you and when he failed to
return on 18 October 2004 no action was taken by you until 20 October 2004 when
the head gamekeeper noted that he was missing and at that point a search was
undertaken and he was found dead in the Road Field, Philiphaugh Estate, Selkirk
on 20 October 2004;
CONTRARY to
Section 2(1) and Section 33(1)(a) of the Health and
Safety at Work Etc Act 1974".
As an alternative, the appellants were charged under section
3(1) of the 1974 Act with failure as an employer within the meaning of the 1974
Act to maintain a safe system of work.
The second charge was under section 33(1)(c) of the Health and Safety at
Work etc Act 1974 and regulations 3(1)(a) and 3(1)(b) of the Management of
Health and Safety at Work Regulations 1999; it involved an allegation that the
appellants, being an employer within the meaning of the Act, failed to make a
suitable and sufficient risk assessment for their lone workers or alternatively
failed to make a suitable and sufficient risk assessment for persons not in
their employment for tasks arising out of the conduct of the appellants'
undertaking. In each case, however, the
manner in which the charge was made against each of the appellants and against
the Philiphaugh Trust was identical.
[3] On 20
September 2005 the appellants intimated pleas to the competency and relevancy of the
charges. It was submitted on their
behalf that the appellants were not the employer of the late Mr. Armstrong and
could not be charged in the capacity of employer. The plea was argued before Sheriff Gilmour on
29 November and 13 December 2005.
On 17 January 2006 the Sheriff sustained the pleas in
part, to the extent that they related to prosecutions against the appellants as
individuals. He accordingly dismissed
the complaint against each appellant as an individual. The Sheriff repelled the pleas to competency
and relevancy in so far as they related to the prosecution of the appellants as
trustees of the Philiphaugh Trust. In
the light of that decision, on the unopposed motion of the procurator fiscal
depute, the charges were amended by deletion of the words "as individuals and"
on each occasion where they occurred.
The charges accordingly took the form "...you JAMES ALISTER AITKENHEAD
and ROBERT STANLEY STRANG STEEL as trustees of the Philiphaugh Trust and the
said PHILIPHAUGH TRUST being an employer within the meaning of the
aftermentioned Act did fail ...". At the same time the Sheriff issued a written
Determination of his reasons for sustaining the plea in part.
[4] The
appellants now appeal to the High Court by way of a note of appeal under
section 174(1) of the Criminal Procedure (Scotland) Act 1995. The appeal is on two grounds. First, it is said that the Sheriff erred in
failing to sustain the objection in that section 143 of the Criminal Procedure
(Scotland) Act 1995, which deals with summary
proceedings against bodies of trustees, only permits a summary complaint
against a trust and not against its trustees.
That applies to the trustees both in their capacity as individuals and
in their capacity as trustees. Secondly,
it is said that the Sheriff erred in that each of the offences libelled can be
committed only by a person who is an employer, but there was no averment that
either appellant was an employer. On
either of the foregoing bases, it is said that the complaint is incompetent and
irrelevant.
[5] The first
ground of appeal raises the question of how a trust should be prosecuted in
summary proceedings. The need for some
mechanism to enable a trust to be prosecuted is perhaps obvious; either the
ownership of property or the conduct of business by trustees may give rise to a
wide range of statutory obligations, and breach of those obligations may call
for prosecution. The Acts and
Regulations dealing with health and safety at work are one example of such
legislation. The statutory provision
dealing with the summary prosecution of trustees is section 143 of the Criminal
Procedure (Scotland) Act 1995. This is in the following terms:
"(1) Without
prejudice to any other or wider powers conferred by statute, this section shall
apply in relation to the prosecution by summary procedure of a partnership,
association, body corporate or body of trustees.
(2) Proceedings
may be taken against the partnership, association body corporate or body of
trustees in their corporate capacity, and in that event any penalty imposed
shall be recovered by civil diligence in accordance with section 221 of this
Act.
(3) Proceedings
may be taken against an individual representative of a partnership, association
or body corporate as follows: --
(a)
in
the case of a partnership or firm, any one of the partners, or the manager or
the person in charge or locally in charge of its affairs;
(b)
in
the case of an association or body corporate, the managing director or the
secretary or other person in charge, or locally in charge, of its affairs,
may be dealt with as if he was the person
offending, and the offence shall be deemed to be the offence of the
partnership, association or body corporate; and in paragraph 3(b) of this
subsection references to the managing director or the secretary, in relation to
a limited liability partnership, are to any member of the limited liability
partnership".
Section 143 is the successor to section 28 of the Summary
Jurisdiction (Scotland) Act 1908. Section 28 was consolidated in section 333 of
the Criminal Procedure (Scotland) Act 1975. So far as counsel's researches were able to
discover, this is the first occasion when a court has had to consider the
application of any of those provisions to trustees.
[6] Section 70 of
the 1995 Act makes somewhat similar provision for solemn proceedings against bodies
corporate. Unlike section 143, it makes
no mention of trusts. We tentatively
think that the conclusions set out in this opinion are likely to apply equally
to cases on indictment against trustees.
We did not hear argument on this point, however, and accordingly the
opinion should be taken, at least for the time being, as relating solely to
summary proceedings.
[7] Section 143(2)
allows proceedings to be taken against a body of trustees "in their corporate
capacity". The interpretation of that
provision must in our opinion depend upon the legal nature of a trust. The essence of a trust is that one or more
persons, the trustees, hold property in a fiduciary capacity for the benefit of
other persons: see Wilson and Duncan, Trusts,
Trustees and Executors, 2nd ed, paragraph
1-63. The existence of one or more
trustees is of fundamental importance to the existence of a trust; all legal
acts of the trust are carried out by the trustees and in their name. That applies to the holding and application
of the trust property, and also to any external legal relationships, such as
contracts concluded for trust purposes.
The need for the trustees to perform all legal acts on behalf of the
trust arises because the trust has no separate legal personality: Muir v City of Glasgow Bank, (1879), 6 R
(HL) 21, per Lord O'Hagan at 38, per Lord Selborne at 39 and per Lord Blackburn
at 43. On occasion the trustees may
fail, through death or resignation or because a corporate trustee is struck
off. In such a case the trust continues
in existence and the trust property remains impressed with the trust purposes,
but the trust is normally incapable of performing any legal acts without the
appointment of new trustees, usually by the court. A further important feature of trustees is
that they act as a single body; they have no capacity to act individually. In Scotland their decision to act as a body may
be reached by a majority of the trustees, which is binding on the trust. Because the trustees are a single body, they
hold trust property jointly rather than in common. The result is that if one trustee dies or
otherwise ceases to act the trust property passes to the remaining trustees,
and the executors or other successors of the trustee who ceases to act normally
have no rights in the trust property.
Likewise, the right of division and sale is excluded because the
trustees have no rights as individuals in the trust property; their only rights
in that property are as members of the body of trustees.
[8] In view of
the features of a trust described in the last paragraph, we are of opinion that
the expression "in their corporate capacity", as used in section 143(2),
indicates that the trustees must be prosecuted as a body, and not as
individuals. That reflects the primary
meaning of the word "corporate". It is
also in accordance with the principle that trustees must act as a body rather
than as individuals. The word "corporate"
clearly does not refer to separate legal personality, because it is used in
respect of both a trust and an association, neither of which has separate legal
personality. It must therefore refer to
the notion that in law the trustees constitute a single entity. In our opinion that gives the word a content
that is quite intelligible, and is in accordance with the standard legal
analysis of trusteeship. The notion that
the trustees form a single entity is also reflected in section 141(2)(c) of the Criminal Procedure (Scotland) Act 1995, which
provides that citation may be effected on a body of trustees if it is left with
any one of them who is resident in Scotland, or their known solicitor in
Scotland; there is no need to serve on each trustee individually.
[9] We are
further of opinion that the trustees must be named in any complaint brought in
accordance with section 143(2). As
explained above, the existence of trustees is fundamental to the existence of a
trust, and all legal dealings of the trust must be in the name of the
trustees. This means that there is no
alternative to naming the trustees in the complaint, albeit solely in their
capacity as trustees. In civil
litigation it is the invariable practice to institute proceedings in the form "A
and B as trustees of the X trust". This
reflects the underlying legal reality, which is that the trustees represent the
trust in all juridical acts. In our
opinion the same procedure should be followed in criminal proceedings brought
under section 143(2). While the rules of
civil practice cannot be transferred automatically to criminal practice, in
this area of law they represent the essential legal nature of a trust, and that
is something that is equally applicable to civil and criminal proceedings. One difference does exist, however, between
civil and criminal proceedings. In civil
proceedings where the trustees are personally liable for their acts, it is
normal to describe them as "A and B as trustees of the X trust and as
individuals". This reflects the fact
that, when trustees conclude a contract on behalf of the trust, they assume
personal liability unless such liability is expressly or impliedly
excluded. Likewise, trustees are
normally personally liable for any delicts of the trust: Mulholland v Macfarlane's Trs, 1928 SLT 251. In summary criminal proceedings, however, we
are of opinion that the trustees are not personally liable for the acts of the
trust. This is a consequence of the
provision in section 143(2) that proceedings may be taken against trustees in
their corporate capacity; that seems to us to exclude personal liability.
[10] The exclusion
of personal liability is also reflected in the form of penalty that is
prescribed by section 143(2). The
concluding words of the subsection provide that any penalty imposed shall be
recovered by civil diligence in accordance with section 221 of the Act. The reference to civil diligence excludes the
possibility of imprisonment. Any penalty
must be monetary in nature, and can only be recovered out of the trust assets;
there is no recourse against the trustees' personal assets.
[11] It follows
from the above that the charges in a summary complaint against trustees should
name the trustees but indicate that the prosecution is against them in their
capacity as trustees of a specified trust. The prosecution is against the
trustees collectively and not individually, and this should be reflected in the
wording used. To that end, all of the
trustees should be named, and their names should be followed by wording
specifying the trust in question. The
wording used to specify the trust should take the form "as trustees of the X
trust"; in this way it is made clear that the charges relate to the named
trustees collectively and only in their capacity as trustees. The specification of the trust may take a
number of different forms. The present
trust is known by the name of the Philiphaugh Trust, but it will normally be
preferable to insert a reference to the trust deed under which the trustees
act; that is the normal way of describing trustees in other legal
documents. Thus the normal form of
designation should be along the following lines: "A and B, the trustees acting
under the Deed of Trust granted by X dated... and registered in the Books of
Council and Session on...". Once the
trustees have been described in this manner, however, the trust should not be
named separately as a subject of the charge because it has no legal existence
independently of the trustees, apart from the shadowy interregnum when there is
a failure of trustees. Similar
principles should be followed in the instance.
The trustees must be named, but it should be made clear that they are
prosecuted in their capacity as trustees of a specified trust. As in the charges, the trust should not be
further named, because it has no independent legal existence. If the trustees are convicted, the conviction
should make it clear that it relates to the named persons collectively and only
in their capacity as trustees. This
means that wording similar to that used in the charges should be followed. The conviction does not relate to the
trustees as individuals, and nothing in the form of wording used should suggest
the contrary. It follows that in any
schedule of previous convictions the trustees should not appear as individuals
but only collectively, in the form "A and B as trustees of the X trust". The conviction should not appear in any
schedule of previous convictions relating to an individual trustee.
[12] Counsel for
the appellants submitted that the trustees should not be named in the
complaint, but that proceedings should be brought against the trust alone. In this connection, he submitted that a body
of trustees was given the character of a body corporate for one specific
purpose, summary prosecution. In our
opinion this argument is misconceived.
The fundamental point is that trustees are not in law a body corporate,
and we can see no reason for giving them that status for the purpose of summary
prosecution. The expression "in their
corporate capacity", as used in section 143, means in our opinion that the
trustees must be prosecuted as a body and not individually. That accords with their ordinary legal
status. If the trustees are prosecuted
as a body, however, it is clear that they must be named; otherwise the body
cannot be identified. For this reason we
reject the suggestion that the trustees should not be named in the complaint;
we can see no alternative to naming them.
[13] Counsel for
the appellant presented a number of further arguments in support of his
contention that the trustees' names should not appear in the complaint. In the first place, he submitted that the
Crown might not know who all of the trustees were. The answer to this, however, is that the
Crown has the means of obtaining that information, and it should normally
ensure that all of the trustees are named in the complaint as trustees of the
particular trust. In the second place,
counsel submitted that the individual trustees might require separate
representation, perhaps because they took different attitudes to the complaint;
one might plead guilty and another not guilty, or trustees might instruct
separate lines of defence. We accept
that this might cause practical difficulties in some cases. Nevertheless, this is a matter for control by
the Sheriff in an individual case.
Generally speaking, because the trustees are prosecuted as a body, a
single plea must be entered on their behalf.
That plea could be determined by a majority of the trustees; that
decision would bind the minority, in accordance with the ordinary rule followed
by Scots law. In some cases deadlock
might occur. In that event, the
presumption of innocence clearly demands that the plea should be not guilty,
and the defence to the action should be instructed by the trustee or trustees
who favour such a plea. In the third
place, counsel submitted that one trustee might be acquitted and another
convicted. Because the trustees must be
prosecuted as a single body, this is impossible; a single verdict must be
reached against the whole of the trustees.
[14] In the fourth
place, counsel submitted that the names of the trustees should not appear in
the complaint because it was important that individuals should be willing to
accept office as trustees; he drew attention to the fact that most trustees
acted gratuitously. It is obviously
desirable that persons should be willing to act as trustees. Nevertheless, we do not think that the fact
that such persons will be named in the event of a prosecution against the trust
is likely to prove a serious disincentive to accepting office as a
trustee. The safeguards referred to in
paragraph [11] above should go some way to protect persons who act as
trustees. In any event, we can see no
obvious alternative to naming those persons; they, in their capacity as
trustees, are the trust, and it is obviously essential that trusts should be
capable of prosecution. In the fifth
place, counsel suggested that individual trustees might face particular
difficulties in the event of a conviction.
One of these was obtaining a visa to enter the United States where, we were informed, details of
previous convictions are asked for. In
our opinion the visa requirements imposed by other countries cannot be
significant in determining how a trust is prosecuted in Scots law. In any event, as indicated above, the form of
conviction recorded against trustees should make it clear that it is against
the trustees collectively, as trustees of a specified trust, and not as
individuals. That should indicate
clearly the nature of any conviction.
[15] Towards the
end of the hearing before us the Advocate Depute moved to amend the charges and
the instance. In the charges, he moved
to delete the reference to the Philiphaugh Trust in its own right and to
describe the trustees by reference to the trust under which they acted. In the instance, he moved to delete the
independent reference to the Philiphaugh Trust and to make it clear that the
two named individuals were referred to in their capacity as trustees of that
trust. We decided to allow the
amendment, under reservation in hoc statu
of all questions of competency and relevancy of the complaint as so
amended. We considered that the
alterations were essentially matters of form, and that no prejudice was likely
to result to the accused. The result of
the Advocate Depute's amendments is that the charges now read as follows: "...
you JAMES ALISTER AITKENHEAD and ROBERT STANLEY STRANG STEEL, the body of
trustees acting under and in terms of the Deed of Trust granted by Sir Fiennes
William Strang Steel dated 18th June 1966 and registered in the Books of
Council and Session on 14th July 1966, being an employer within the meaning of
the after mentioned Act did fail to ensure the health, safety and welfare at
work of your employees...". The instance
now takes the form
"JAMES ALISTER AITKENHEAD
[designation]
and
ROBERT STANLEY STRANG STEEL
[designation],
as trustees of the Philiphaugh Trust,
herein designed".
In our opinion these amendments deal adequately with the
difficulties with the original form of the charges, and are sufficient to
satisfy the requirements of section 143(2).
[16] The second
argument for the appellants was that the offences libelled can only be
committed by a person who is an employer, but there was no averment that either
appellant was an employer. In our
opinion there is some force in this criticism of the charges in the form that
they took before the Sheriff. We
consider, however, that the amendments proposed by the Advocate Depute deal
with this matter. It is apparent from
the amended form of the charges that it is the body of trustees which is
charged, and it is expressly averred that the body of trustees is the
employer. That represents the true legal
position.
[17] For the
foregoing reasons, we are of opinion that the complaint as amended now meets
the requirements both of section 143(2) of the Criminal Procedure (Scotland) Act 1995 and of the health and
safety legislation that forms the basis for the charges. We will accordingly repel the appellants'
pleas to the competency and relevancy of the complaint as amended. We will remit to the Sheriff to proceed as
accords.
