Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





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Thursday, 4 September 2014

CHOOSE FROM LICENSING ACT s.146/THEFT ACT s.2 OR DEAD COMPANY BUT LIVE DIRECTORS



As in most occupations there are some days when events are much more interesting than others.  My last sitting was such a day. 



It disturbs me greatly when governments of all hues moan and groan until the night is long and fail to enact obvious corrective measures to  a particular  problem.  The consumption of alcohol by under age teenagers is a major scourge.  Whilst some drinking might be done in secret  at home most alcohol    is purchased from off  license premises ranging from Tesco and similar to the corner shop in any suburban shopping parade.   The simple deterrent to the illegal sale of alcohol in these circumstances would be  for a second offence to allow the offender to be  prohibited from holding a liquor license  for  a longer period than the current maximum of  six months.  The maximum fine is £5,000 for a  s.146 offence.  The fact that in 2013 only 128 offenders were convicted of s.146 alcohol offences under  the Licensing Act 2003 speaks volumes.  Local authorities which  are normally responsible for the policing of the act in these instances  devote their reduced budgets to the bare bones of what is necessary to fulfil their basic functions of roads, refuse collection, education etc.  The cost of children`s broken lives does not appear in any balance sheet.  The first such defendant  to appear in front of us that day  was a first timer  s.146 offender  who had since the offence sold his business.  Indeed he was the first s.146 case I have been involved in for at least three years or longer such is the dearth of prosecutions as borne out by the statistics link above.  With full costs we allowed him 7 days to pay his punishment of close to £2,500. 



Three company directors and their jointly owned company were charged with a series of offences relating to their car sales business.  They were unrepresented.  Their spokesman defendant  told us the company had been dissolved since the date of the offences.  The prosecutor verified this  after a brief adjournment and told the court that in law the charge against the company could not now be sustained but those against the now former directors would still go ahead.  To mere layman there is just a hint of illogicality insofar as a dead company cannot be charged but the former directors can be.



The third unusual matter was having to acquit an admittedly dishonest person because she had been charged with  theft from a shop on a particular day but had demonstrated that at the time of the incident she had not  knowingly been aware  the article in question could not be removed and she had had no intent to take something to which she had no right.  Subsequent evidence demonstrated that a day after the alleged offence she had knowledge that the item was not hers to rightfully have walked  away with.  In other words,  her initial honest mistake in walking out with an item,  under s.2 of the Theft Act could not be proved  as charged even when she realised later it was not hers to take.  If the charge had been written as having alleged the offence to have taken place between eg the original date and a later one when she was arrested a week later with the article we would have found her guilty.  Alternatively a charge involving dishonesty or fraud might have been better suited to the facts. But when the CPS scarcely glances at such details on such a common matter  when considering whether or what to charge what else can be expected?  We applied the law as it is; not as we might wish it to be. That is our duty.


3 comments:

  1. "To mere layman there is just a hint of illogicality insofar as a dead company cannot be charged but the former directors can be."

    I'm not sure it is that illogical. Lets consider the company to be just like another person but who's mind is controlled by the other people - perhaps like a rich elderly relative being advised what to do by its children. It makes sense to pursue the company because often it has the most significant assets, but if the directors are the controlling mind then they should be punished directly too. If the company is "dead" however then it can not be pursued - that doesn't mean those who controlled it when it was alive did no wrong (indeed they may well have benefitted out of its demise).

    It would be illogical that an entity which no longer existed was able to be prosecuted.
    It would be illogical that the directors of a company could avoid prosecution simply by winding up the company.

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    1. "Just a hint" ....... Of course I appreciate your comment. Death does not end all. A deceased`s estate can be pursued. In the case quoted we got a distinct flavour of the company`s demise being not unconnected with the impending case. I would hazard the opinion that if the will (no pun intended) were there legislation could be provided for the purpose of seeking just rewards for corporate malpractice in a defunct business.

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  2. My experience is that a deceased's estate is not normally pursued (even for unpaid fines). It may be possible but is it worth the effort. I would hazard a guess that in this case the beneficiaries of the company's winding up were the directors in any case. It is possible through the Companies Act to pursue persons who improperly wound up a company, which might include the directors if they didn't alert the Crown during the winding up process. My experience is, so long as someone cops for it - the Crown have (probably rightly) better things to do with their time than investigate every angle to maximise the number of guilty parties.

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