Generally, criminal liability is personal, meaning that a person cannot be punished for what he or she has not personally done i.e
In the case of R VHuggins and Barnes: KBD 1730
The warden of Fleet prison was acquitted of the murder of a prisoner who had been placed in an unhealthy cell by one of the turnkeys (assistant).
The warden did not know that this had been done. Therefore was not held liable.
Categories of People who can be Held Vicariously Liable
- Principles (for acts of their Agents) i.e
In the case of Duke of Leinster [1924] 1 KB 311
The Duke’s Agent obtained credit without disclosing the fact that the Duke was bankrupt. In fact, the Agent did so contrary to the Duke’s instructions. The Duke was guilty because he was vicariously liable for his agent’s failure to disclose the bankruptcy;
- Employers (for acts of their Employees)
- Corporations(for actions of their employees)
- Licensees (for actions of others working under the authority of the Licensee)
However, vicarious liability is an exception to the general
and denotes that a person can be punished for a crime committed by another.
Lloyd v Grace, Smith & Co [1912] AC 716
A solicitors’ clerk fraudulently induced a conveyance from a
client, then disposing of her house for his own personal benefit. The issue was
whether the solicitor was responsible for the fraudulent act.
Held that vicarious
liability could extend to fraudulent acts or omissions if those were carried out
in the course of the employment or within the scope of the apparent authority,
albeit by an employee or a partner conducting the business of a type which he
had a right to conduct.
The principal was liable for the agent's fraud because the conveyancing is part of the ordinary business of solicitors. The client had been invited by the firm to deal with their managing clerk.
It was irrelevant that the agent acted with a dishonest purpose for his own ends. His act was of the class or kind of actions that fall within the ordinary business of solicitors.
Circumstances Under Which a Person can be Held Vicariously Liable
Delegation
principle
An employer may be liable for the acts of their employee, provided the employee is acting in the course of his employment.
Coppen v Moore (1898) 2 QB 306
The Act made it an offence to sell or expose for sale goods to which a forged trademark or false description was applied unless the alleged offender could prove what amounted to due diligence.
At one of the appellant’s shops, salesmen sold American Ham as Scotch Ham, despite instructions from the appellant to branch managers that breakfast hams should only be sold as such, without reference to any place of origin.
He was nevertheless
convicted. It was contended on his behalf that he should not be held criminally
liable for the unauthorized acts of his servants.
Lord Russell CJ Held:
“In our judgment, it was clearly the intention of the Legislature to make the master criminally liable for such acts, unless he was able to rebut the prima facie presumption of guilt by one or other of the methods pointed out in the Act.
Take the facts here, and apply the Act to them. To begin with, it cannot be doubted that the appellant sold the ham in question, although the transaction was carried out by his servants. In other words, he was the seller, although not the actual salesman.”
Also Read: Actus Reus
Allen v Whitehead (1930) 1 KB 311
The licensee of a refreshment house was charged with the offence of allowing prostitutes to congregate on the premises. He had been warned by the police that it was an offence to harbour prostitutes at the said premises.
The licensee had issued instructions to his manager not to allow women to enter the premises after midnight and had posted notices to this effect. He visited the property two or three times a week. Still, there was no evidence of misconduct in Participation in Crime, nor did he know that his manager ignored his instructions.
Lord Hewart believed that the provision in the statute
would be rendered nugatory if the licensee’s contention that he had no
knowledge of the events was allowed to prevail.
Lord Hewart CJ held:
“This seems to me to be a case where the proprietor, the keeper of the house had delegated his duty to a manager, so far as the conduct of the house was concerned.
He had
transferred to the manager the exercise of discretion in the conduct of the
business and it seems to me that the only reasonable conclusion is, regard the being had to the purposes of this Act ……that the knowledge of the manager was
the knowledge of the keeper of the house”.
The master will be held liable where the servant’s acts are the act of the master in law.
It was further affirmed in the case of
Linnett v Metropolitan Police commissioner [1946] 1 All ER 380
The same principle was used to make a co- licensee liable for the acts of his fellow co- licensee.
He had delegated the management of a refreshment house
to his co- licensee and was absent from the premises but was still held guilty
of ‘knowingly permitting disorderly conduct, even though he personally had no
knowledge of it.
Note; For the Delegation doctrine to fully apply, there must be the full delegation by the employer/ licensee as was illustrated
In the case of
Vane v Yiannopoullos [1964] 3 All ER 820
D was the licensee of a restaurant. He had given instructions to the waitress in the restaurant not to serve alcoholic drinks to people unless they ordered a meal as well.
While D was on another floor of the building, a waitress served alcohol to two youths who did not order a meal.
D was charged with the offence of ‘knowingly selling intoxicating liquor to persons to whom he was not entitled to sell’, contrary to s 22 of the Licensing Act 1961, but acquitted.
The prosecution appealed against this, but the Divisional Court dismissed the appeal. The prosecutor appealed to the House of Lords.
The Lords dismissed the appeal, holding that there had not
been sufficient delegation to make D vicariously liable for the employee’s
actions
Actions by the master
Ø Some statutes
make the employer liable for the acts of his servants unless, for a situation
where the employee hasn’t acted on a task, they were authorized to do. This
issue was illustrated
In the case of Adams v Camfoni [1929] 1 KB 95
X was a licensee who was charged with selling alcohol outside the hours permitted by the licence.
The sale had been made by a messenger boy who had no authority to sell anything. X was
held to be not guilty.
OR
Ø A situation
where the employer shows that they took reasonable steps to stop the
commission of the offence
Lewis v Hodgkins 27 KLR 168
The driver of the company drove a car belonging to the company that had no third-party insurance.
Under section 4 of the Kenyan Motor vehicle insurance third party insurance ordinance was an offence to permit any person to use a motor vehicle on the road unless there is in force a policy of insurance in respect of a third party.
The driver was forbidden
from using the car.
Since it was shown that the company had not permitted the driver to use the motor vehicle, the co was not liable.
Therefore, the court will always take into account the following consideration to make the master liable for the crimes committed by
his servants;
· The object of the statute. Some statutes lay down absolute duty if the person does a forbidden act.
· The word used, e.g. driving a car on the road without a license.
· The nature of the duty imposed. Some responsibilities are carried out
through employees.
· The person upon whom the duty is imposed. E.g. delegation of
duty.
· A person who, in ordinary circumstances, performs the duty
imposed.
· A person whom punishment is imposed.
· Principle of statutory interpretation.