United Kingdom House of Lords Decisions

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of policy think it right to make employers criminally liable for the acts of,
some of their servants but not for those of others and I find it incredible
that a draftsman, aware of that intention, would fail to insert any words
to express it. But in several cases the Courts, for reasons which it is not
easy to discover, have given a restricted meaning to such provisions. It has
been held that such provisions afford a defence if the master proves that the
servant at fault was the person who himself did the prohibited act, but that
they afford no defence if the servant at fault was one who failed in his duty
of supervision to see that his subordinates did not commit the prohibited act.
Why Parliament should be thought to have intended this distinction or
how as a matter of construction these provisions can reasonably be held
to have that meaning is not apparent.

In some of these cases the employer charged with the offence was a limited
company. But in others the employer was an individual and still it was
held that he, though personally entirely blameless, could not rely on these
provisions if the fault which led to the commission of the offence was the
fault of a servant in failing to carry out his duty to instruct or supervise
his subordinates.

Where a limited company is the employer difficult questions do arise in
a wide variety of circumstances in deciding which of its officers or servants
is to be identified with the company so that his guilt is the guilt of the
company.

I must start by considering the nature of the personality which by a
fiction the law attributes to a corporation. A living person has a mind
which can have knowledge or intention or be negligent and he has hands
to carry out his intentions. A corporation has none of these: it must act
through living persons, though not always one or the same person. Then
the person who acts is not speaking or acting for the company. He is
acting as the company and his mind which directs his acts is the mind of
the company. There is no question of the company being vicariously
liable. He is not acting as a servant, representative, agent or delegate. He
is an embodiment of the company or, one could say, he hears and speaks
through the persona of the company, within his appropriate sphere, and his
mind is the mind of the company. If it is a guilty mind then that guilt is
the guilt of the company. It must be a question of law whether, once the
facts have been ascertained, a person in doing particular things is to be
regarded as the company or merely as the company's servant or agent. In
that case any liability of the company can only be a statutory or vicarious
liability.

In Lennard's Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705 the
question was whether damage had occurred without the " actual fault or
" privity " of the owner of a ship. The owners were a company. The
fault was that of the registered managing owner who managed the ship on
behalf of the owners and it was held that the company could not dissociate
itself from him so as to say that there was no actual fault or privity on
the part of the company. Lord Haldane L.C. said at page 713: "For if
" Mr. Leonard was the directing mind of the company, then his action must,
" unless a corporation is not to be liable at all, have been an action which
" was the action of the company itself within the meaning of section 502
"... It must be upon the true construction of that section in such a case
" as the present one that the fault or privity is the fault or privity of some-
" body who is not merely a servant or agent for whom the company is
" liable upon the footing respondent superior, but somebody for whom the
" company is liable because his action is the very action of the company
" itself." '

Reference is frequently made to the judgment of Lord Denning in Bolton
(Engineering) Co. v. Graham [1957] 1 Q-B. 159. He said (at page 172):
" A company may in many ways be likened to a human body. It has a
" brain and nerve centre which controls what it does. It also has hands
" which hold the tools and act in accordance with directions from the centre.
" Some of the people in the company are mere servants and agents who are

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" nothing more than hands to do the work and cannot be said to represent
" the mind or will. Others are directors and managers who represent the
" directing mind and will of the company, and control what it does. The
" state of mind of these managers is the state of mind of the company and
" is treated by the law as such."

In that case the directors of the company only met once a year: they left
the management of the business to others, and it was the intention of those
managers which was imputed to the company. I think that was right.
There have been attempts to apply Lord Denning's words to all servants of
a company whose work is brain work, or who exercise some managerial
discretion under the direction of superior officers of the company. I do
not think that Lord Denning intended to refer to them. He only referred
to those who " represent the directing mind and will of the company, and
" control what it does."

I think that is right for this reason. Normally the Board of Directors, the
Managing Director and perhaps other superior officers of a company carry
out the functions of management and speak and act as the company.
Their subordinates do not. They carry out orders from above and it can
make no difference that they arc given some measure of discretion. But the
Board of Directors may delegate sonic part of their functions of manage-
ment giving to their delegate full discretion to act independently of instruc-
tions from them. I see no difficulty in holding that they have thereby put
such a delegate in their place so that within the scope of the delegation he
can act as the company. It may not always be easy to draw the line but
there are cases in which the line must be drawn. Lennard's case was one of
them.

In some cases the phrase alter ego has been used. I think it is misleading.
When dealing with a company the word alter is I think misleading. The
person who speaks and acts as the company is not alter. He is identified
with the company. And when dealing with an individual no other indivi-
dual can be his alter ego. The other individual can be a servant, agent,
delegate or representative but I know of neither principle nor authority
which warrants the confusion tin the literal or original sense) of two
separate individuals.

The earliest cases dealing with this matter \\hich were cited were R. C.
Hammett Ltd. v. Crabb (1931) 95 J.P. 180 and R. C. Hammett Ltd. v.
London County Council (1933) 97 J.P. 105. In both a servant of the
accused company had infringed the provisions of section 5 (2) of the Sale
of Food (Weights and Measures) Act 1926. Section 12 (5) exempted the
employer from penalty if he charged another person as the actual offender
and could " prove to the satisfaction of the Court that he had used due
diligence to enforce the execution of this Act and that the said other
" person had committed the offence in question without his consent
" connivance or wilful default."

In the earlier case the offence was committed by the shop manager
personally and he knew that he was committing an offence. A conviction
was quashed on the ground that the magistrate had treated the question
whether the employer had used due diligence as one of law, that it was
really one of fact and that there was no evidence on which the magistrate
could reach his decision.

In the second case the offence was committed by a subordinate: the shop
manager had warned him but had not exercised due diligence to see that
his instructions were obeyed. Again the magistrates convicted on the ground
that the owners were responsible for lack of due diligence in their manager.
This time the conviction was upheld by the same court. It was argued for
the Respondents that the employer is responsible for the acts or omissions
of all persons above the actual offender. It seems to me obvious that that
is a matter of law depending on the proper construction of the statutory
provision. But Lord Hewart, L.C.J., did not so regard it. He said that
there was evidence on which Quarter Sessions could arrive at their opinion
and that they were entitled to come to the conclusion that the appellants
were responsible for the manager's lack of due diligence.

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I find these cases most unsatisfactory. There is no explanation of how
it could be a question of fact whether the provisions of section 12(5) meant
that what the employer had to prove was that he personally had used due
diligence, or that he also had to prove that some or all of his servants had
also done so. But the Court did not deal with that. Nevertheless because
the only difference between the two cases appears to have been that in the
first the shop manager was himself the offender whereas in the second the
fault was lack of supervision, these cases have been thought to afford
authority for the proposition that an employer has a defence if the only
fault was in the actual offender but not if there was fault of any of his
servants superior to the actual offender. I can find no warrant for that
proposition in the terms of section 12(5). Both parts of the provision—
that the employer had used due diligence and that the offence had been
committed without his consent, connivance or wilful default—appear to me
plainly to refer to the employer personally and to no one else.

I agree with the view of Lord Justice-General Cooper in a case dealing
with the same Act Dumfries and Maxwelltown Co-Operative Society v.
Williamson [1950] J.C. 76 that "The underlying idea manifestly is that there
" should not be vicarious responsibility for an infringement of the Act
" committed without the consent or connivance of an employer . . ."

In the next two cases a company was accused and it was held liable for
the fault of a superior officer. In D.P.P. v. Kent and Sussex Contractors
[1944] K.B. 146 he was the transport manager. In R. v. I.C.R. Haulage
[19441 K.B. 551 it was held that a company can be guilty of common law
conspiracy. The act of the managing director was held to be the act of
the company. I think that a passage in the judgment is too widely stated:
" Where in any particular case there is evidence to go to a jury that the
" criminal act of an agent, including his state of mind, intention, knowledge
" or belief is the act of the company, and, in cases where the presiding judge
" so rules, whether the jury are satisfied that it has been proved, must
" depend on the nature of the charge, the relative position of the officer or
" agent, and the other relevant facts and circumstances of the case." This
may have been influenced by the erroneous views expressed in the two
Hammett cases. I think that the true view is that the judge must direct the
jury that if they find certain facts proved then as a matter of law they must
find that the criminal act of the officer, servant or agent including his state of
mind, intention, knowledge or belief is the act of the company. I have
already dealt with the considerations to be applied in deciding when such
a person can and when he cannot be identified with the company. I do not
see how the nature of the charge can make any difference. If the guilty
man was in law identifiable with the company then whether his offence was
serious or venial his act was the act of the company but if he was not so
identifiable then no act of his, serious or otherwise, was the act of the
company itself.

In Henshall v. Harvey [1965] 2 Q.B. 233 a company was held not criminally
responsible for the negligence of a servant in charge of a weighbridge. In
Magna Plant v. Mithell (unreported) 27th April 1966 the fault was that of
a depot engineer and again the company was held not criminally responsible.
I think these decisions were right. In the Magna Plant case Lord Parker,
L.C.J., said: ". . . knowledge of a servant cannot be imputed to the
"Company unless he is a servant for whose actions the Company are
" criminally responsible, and as the cases show, that only arises in the case
" of a company where one is considering the acts of responsible officers
" forming the brain, or in the case of an individual, a person to whom
" delegation in the true sense of the delegation of management has been
" passed."

1 agree with what he said with regard to a company. But delegation by
an individual is another matter. It has been recognised in licensing cases
but that is in my view anomalous (see Vane- v. Yanopoulus [1965] A.C. 486).

The latest important authority is Series v. Poole [11969] 1 Q.B. 676. That
was an appeal against the dismissal of an information that the holder of a
carriers licence had failed to keep or cause to be kept records required by the
Road Traffic Act 1960 with regard to the driver of a vehicle. That was

6

an absolute offence but that was amended by the Road Traffic Act 1962
which provided by section 20 that it should "be a defence to prove that
"he used all due diligence to secure compliance with those provisions".
The Respondent proved that he had given proper instructions to the driver,
that he employed a secretary to check the driver's records and had to
begin with supervised her work, but that thereafter she failed to make
proper checks. The justices held, possibly wrongly that the accused had
used all due diligence as required by the Act. The Court accepted that
finding but nevertheless sent the case back with a direction to convict.

Lord Morris of Borth-y-Gest

my lords.

The main question which is raised in this appeal is whether, on the
findings of fact of the magistrates, the company, Tesco Supermarket Limited
(Tesco) established a defence under the provisions of section 24(1) of the
Trade Descriptions Act, 1968,

The terms of section 24(1) are as follows: —

" 24.—(1) In any proceedings for an offence under this Act it shall,
" subject to subsection (2) of this section, be a defence for the person
" charged to prove—

" (a) that the commission of the offence was due to a mistake or to
" reliance on information supplied to him or to the act or default
" of another person, an accident or some other cause beyond his
" control; and

" (b) that he took all reasonable precautions and exercised all due
" diligence to avoid the commission of such an offence by himself
" or any person under his control."

There were " proceedings for an offence under " the Act. The Company
(Tesco) was the " person charged ". The Case Stated finds that Tesco is
" a nationally known public Company who own many hundred stores".
There are at least 230 such stores in the north. In one of these on the
26th September, 1969, there was in the window (and there had been for
some days previously) a poster which proclaimed that a customer could
purchase a certain package for 1s. less than its normal price of 3s. 11d.
An advertisement so stating had appeared in local and national newspapers.
For a number of days prior to the 26th September there had been displayed
in the particular store and upon a separate fixture a number of the packages
upon each of which was the legend " Is. off recommended price". But at
10 a.m. on the 26th September there were no packages so marked. Packages
of that variety were displayed for sale—but each had a price marking of
3s. 11d.: they were on a shelf which had a price marking of 3s. 11d. It was
at 10 a.m. that a customer searched the store for one of the packages at
the price of 2s.11d. He had expected to find one at that reduced price.
He could not. He could only find those at the marked price of 3s. 11d.
He took one of those and asked its price of the cashier. Being informed
that there were none of the packages in stock for sale at 2s. 11d. he was
charged and paid the higher price.

A breakdown in the system had occurred. During the period of a special
offer all packages marked with the normal price should have been removed
from display. If any special offer stock was sold out the manager should
have been so informed in order that he could remove any display notice
that would be misleading. Actually on the evening of the 25th September an
assistant had noticed that none of the special offer packages remained on
display: she had thereupon filled the appropriate fixture with packages having
the marked price of 3s. 11d.: she had not reported to the manager either the
dearth of packages marked 2s. 11d. or her action in placing in the fixture
those marked 3s. 11d. The manager had over-estimated his stock of pack-
ages at the reduced price: he thought that four cases were full which were
in fact empty. Furthermore, the manager did not check the fixture on the
26th September though in his Weights and Measures Book for that morning
there was an entry " All special offers O.K.". Had he realised that the
store had sold out of the reduced price packages he would either have
removed that part of the poster which related to them or he would have
reduced the price of the packages in the store to 2s. 11d. The store was,
on the date in question, displaying for sale many thousands of different
lines including many which were offered at reduced prices (referred to as
" flash " offers).

On the facts as found it appeared, therefore, that an offence had been
committed. There had been a misleading indication as to price. It is
provided by section 11 (2) of the Act as follows: —

" 11.—(2) If any person offering to supply any goods gives, by what-
" ever means, any indication likely to be taken as an indication that

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" the goods are being offered at a price less than that at which they
" are in fact being offered he shall, subject to the provisions of this
" Act, be guilty of an offence."

" Prima facie, then, a master is not to be made criminally responsible
" for the acts of his servant to which the master is not a party. But it
" may be the intention of the Legislature, in order to guard against
" the happening of the forbidden thing, to impose a liability upon a
" principal even though he does not know of, and is not a party to,
" the forbidden act done by his servant. Many statutes are passed with
" this object. Acts done by the servant of the licensed holder of licensed
" premises render the licensed holder in some instances liable, even
" though the act was done by his servant without the knowledge of
" the master. Under the Food and Drugs Acts there are again instances
" well known in these Courts where the master is made responsible,
" even though he knows nothing of the act done by his servant, and he
" may be fined or rendered amenable to the penalty enjoined by the law.
" In those cases the Legislature absolutely forbids the act and makes
" the principal liable without a mens rea."

But for one point the magistrates would have found that the defence was
proved: but for that one point they would have acquitted Tesco. They
found (1) that Tesco had established that the commission of the offence was
due to the act or default of the manager of the store by his failure to see that
the company's policy was correctly carried out and/or to correct the errors
of the staff under him, and (2) that Tesco had proved that they had taken
all reasonable precautions and had exercised all due diligence to avoid the
commission of the offence under section 11(2) either by themselves or by
any person under their control. They had exercised all due diligence in
devising a proper system for the operation of the store and by securing as
far as was reasonably practicable that it was fully implemented. In the
careful and ample statement of case the magistrates set out in much detail
their reasons for arriving at these conclusions. They need not be here
repeated. Suffice it to say that the case describes the system of administration
and the various steps taken by Tesco to ensure that the manager was instructed
and continuously and fully instructed in regard to the proper management of
the store. There was a careful and reasonable system of selection of managers.
Furthermore, the case describes in detail the various steps taken by Tesco
in the exercise of supervision over the manager and the proper running
of the store. The manager of the store had under him an assistant manager

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and there were various section heads: the total number of the staff in the
store was 60. It was found that the company had provided adequate staff
and equipment for the running of the store. Then there was a " ladder of
" responsibility " of those whose work was that of supervision. Thus there
were branch inspectors whose duties (involving regular attendance) were solely
those of supervision in regard to some 6 or 8 stores. There were Area
Controllers who in regard to some 24 stores supervised the branch inspectors
as well as the managers and the operation of such stores: their duties also
involved regular attendance at stores. There was a Regional Director
who was responsible for a number of stores and the supervision of the area
controllers, branch inspectors and managers for them.

A point had been argued before the magistrates whether an offence under
section 11 (2) had been made out. They considered that it had. They stated
two questions for the opinion of the High Court, viz. (1) whether they were
correct in concluding that an offence under section 11(2) had been made
out and (2) whether they were correct in concluding that the manager
was not "another person" within the meaning of section 24(l)(a). The
Divisional Court held that they were correct in regard to (1) and that matter
was not pursued before your Lordships. In regard to (2) it was accepted
by the Respondent in the Divisional Court, and it was common ground, that
the manager was "another person " within the meaning of section 24(1)(a).
It was said that where a defendant is an individual then any other individual
could be " another person " and that where a defendant is a company or
corporate body then any individual could be " another person " provided
that he is not a person within section 20 carrying out functions as such
person. Section 20 is in the following terms: —

"20.—(1) Where an offence under this Act which has been com-
" mitted by a body corporate is proved to have been committed with
" the consent and connivance of, or to be attributable to any neglect
" on the part of, any director, manager, secretary or other similar
" officer of the body corporate, or any person who was purporting to
" act in any such capacity, he as well as the body corporate shall be
" guilty of that offence and shall be liable to be proceeded against and
" punished accordingly.

" (2) In this section ' director ', in relation to any body corporate
" established by or under any enactment for the purpose of carrying
" on under national ownership any industry or part of an industry
" or undertaking, being a body corporate whose affairs are managed by
" the members thereof, means a member of that body corporate."

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was a failure by someone to whom the duty of carrying out the system
was "delegated" properly to carry out that function. As the Divisional
Court considered that all the facts were sufficiently found so that the " real
" question " could be answered even though it was not a question raised,
and as they considered that the manager of the store was a person to whom
the company had, in respect of that particular store, " delegated " their duty
to take all reasonable precautions and to exercise all due diligence to avoid
the commission of an offence, they concluded that it was impossible for the
magistrates to find that the company had satisfied the requirements of
section 24(l)(b). Accordingly, they dismissed the appeal. In granting leave
to appeal the court certified the point of law of public general importance
in the following terms: —

"Whether a person charged with an offence under Section 11(2) of
" the Trade Descriptions Act 1968 in a retail shop owned by him would
" have a defence under Section 24(1) of the said Act if: —

" (a) he instituted an efficient system to avoid the commission of
" offences under the Act by any person under his control

" (b) he reasonably delegated to the manager of the shop the duty
" of operating the said system in that shop

" (c) the manager failed to perform such duty efficiently

" (d) the offence charged was committed by reason of such failure

" (e) such failure by the said manager is the ' act or default of another
"'person' relied on under Section 24(1 )(a)."

How, then, does a company take all reasonable precautions and exercise
all due diligence? The very basis of section 24 involves that some contra-
ventions of the Act may take place and may be contraventions by persons
under the control of the company even though the company itself has
taken all reasonable precautions and exercised all due diligence and that the
company will not be criminally answerable for such contraventions. How,
then, does a company act? When is some act the act of the company as
opposed to the act of a servant or agent of the company (for which, if done
within the scope of employment, the company will be civilly answerable)? In
Lennard's Carrying Company Limited v. Asiatic Petroleum Company Limited
[1915] A.C.705 Viscount Haldane L.C. said (at page 713): "My Lords, a
" corporation is an abstraction. It has no mind of its own any more than it
" has a body of its own; its active and directing will must consequently be
" sought in the person of somebody who for some purposes may be called an
" agent, but who is really the directing mind and will of the corporation, the
" very ego and centre of the personality of the corporation. That person may
" be under the direction of the shareholders in general meeting; that person
" may be the board of directors itself, or it may be, and in some companies
" it is so, that that person has an authority co-ordinate with the board of

11

" directors given to him under the articles of association, and is appointed
" by the general meeting of the company, and can only be removed by the
" general meeting of the company." Within the scheme of the Act now
being considered an indication is given (which need not necessarily be an all-
embracing indication) of those who may personify " the directing mind and
" will " of the company. The question in the present case becomes a question
whether the company as a company took all reasonable precautions and
exercised all due diligence. The magistrates so found and so held. The
magistrates found and held that " they " (i.e. the company) had satisfied the
provisions of section 24(l)(b). The reason why the Divisional Court felt that
they could not accept that finding was that they considered that the company
had delegated its duty to the manager of the shop. The manager was, they
thought, " a person to whom the Appellants had delegated in respect of that
" particular shop their duty to take all reasonable precautions and exercise
" all due diligence to avoid the commission " of an offence. Though the
magistrates were satisfied that the company had set up an efficient system
there had been " a failure by someone to whom the duty of carrying out
" the system was delegated properly to carry out that function."

My Lords, with respect I do not think that there was any feature of
delegation in the present case. The company had its responsibilities in regard
to taking all reasonable precautions and exercising all due diligence. The
careful and effective discharge of those responsibilities required the directing
mind and will of the company. A system had to be created which could
rationally be said to be so designed that the commission of offences would
be avoided. There was no delegation of the duty of taking precautions
and exercising diligence. There was no such delegation to the manager of a
particular store. He did not function as the directing mind or will of the
company. His duties as the manager of one store did not involve managing
the company. He was one who was being directed. He was one who was
employed but he was not a delegate to whom the company passed on its
responsibilities. He had certain duties which were the result of the taking
by the company of all reasonable precautions and of the exercising by the
company of all due diligence. He was a person under the control of the
company and on the assumption that there could be proceedings against him,
the company would by section 24(1)(b) be absolved if the company had taken
all proper steps to avoid the commission of an offence by him. To make
the company automatically liable for an offence committed by him would be
to ignore the subsection. He was, so to speak, a cog in the machine which
was devised: it was not left to him to devise it. Nor was he within what
has been called the " brain area " of the company. If the company had
taken all reasonable precautions and exercised all due diligence to ensure
that the machine could and should run effectively then some breakdown due
to some action or failure on the part of " another person " ought not to be
attributed to the company or to be regarded as the action or failure of the
company itself for which the company was to be criminally responsible. The
defence provided by section 24(1) would otherwise be illusory.

In reaching their conclusion, the Divisional Court placed reliance on and
followed the decision in Series v. Poole [1969] 1 Q.B. 676. In that case
the holder of a carrier's licence was charged with failing, contrary to section
186 of the Road Traffic Act, 1960, properly to keep current records. The
records were in fact defective but the licence holder had employed someone
to check the records. He had instructed such employee as to the method
of checking the records: he had supervised the work of such employee
until he was satisfied that the system was working well. The justices found
that he had used all due diligence to secure compliance with the relevant
statutory provisions. Provided that this finding could on the facts be sup-
ported I see no reason why the Divisional Court should have denied to him
the defence which by section 20 of the Road Traffic Act, 1962, was made
available. On the justices' finding I consider that the acquittal should have
been allowed to stand. The licence holder had not washed his hands of his
responsibilities: he had used all due diligence to see that they were discharged
so that there should be compliance with the provisions of the statute.

12

In R. C. Hammett Limited v. London County Council Vol. 97 J.P. 105,
employers were denied the defence available under section 12(5) of the Sale
of Food (Weights and Measures) Act, 1926, on the ground that the manager
of a shop had not shown due diligence though the employers themselves had
in all other respects used due diligence. I do not think that that case was
rightly decided.

On the facts as found and by the application of section 24(1) I consider
that the company should have been absolved from criminal liability.

Accordingly, I would allow the appeal.

Viscount Dilhorne

my lords,

" If any person offering to supply goods gives, by whatever means,
" any indication likely to be taken as an indication that the goods are
" being offered at a price less than that at which they are in fact being
" offered he shall, subject to the provisions of this Act, be guilty of an
" offence."

Section 24(1) is in the following terms:-

" In any proceedings for an offence under this Act it shall, subject
" to subsection (2) of this section. be a defence for the person charged
" to prove—

" (a) that the commission of the offence was due to a mistake or to
" reliance on information supplied to him or to the act or default
" of another person, an accident or some other cause beyond his
" control ; and

" (b)that he took all reasonable precautions and exercised all due
" diligence to avoid the commission of such an offence by himself
" or any person under his control."

Section 24(2) reads as follows:

" If in any case the defence provided by the last foregoing subsection
" involves the allegation that the commission of the offence was due to
" the act or default of another person or to reliance on information
" supplied by another person, the person charged shall not, without
" the leave of the court, be entitled to rely on that defence unless,
" within a period ending seven clear days before the hearing, he has
" served on the prosecutor a notice in writing giving such information
" identifying or assisting in the identification of that other person as
" was then in his possession."

13

The Appellants gave notice as required by this subsection, alleging that
the commission of the offence was due to the act or default of a Mr. Clement,
the manager of their supermarket at Northwich. They were consequently
entitled to an acquittal if they proved that, and also that they had taken all
reasonable precautions and had exercised all due diligence to avoid the
commission of the offence by Clement.

What had happened was that the evening before the commission of the
offence Miss Rogers, a shop assistant, whose duty it was to put the packs
on display for sale, had discovered that there were no packs displayed for
sale at 2s. 11d. and no packs marked with that price available for display.
She had, therefore, put out packs marked with the price of 3s. 11d. She
had not reported to Clement that there were no 2s. 11d. packs to display.
It was his duty to check the display of the special offers and to enter in a
book that he had done so. In the entry for the 26th September he had
written " All special offers O.K." when in fact the special offer of Radiant
Giant Size packs was not, as no such packs were being offered for sale at
2s. 11d. a pack.

The magistrates found that " the original act or default was that of
" Miss Rogers and the act or default of the said Clement was in his failure
" to instruct or supervise her " and that " the commission of the offence
" was due to the act or default of the said Clement by his failure to see
" that the Appellants' policy was correctly carried out and/or to correct
" the errors of the staff under him."

The magistrates held that the Appellants had exercised all due diligence
in devising a proper system for the operation of the store and by securing,
so far as was reasonably practicable, that it was fully implemented and
thus had fulfilled the requirements of section 24(l)(b). Although they did
not in terms say so, they clearly meant that the Appellants had, as well as
exercising all due diligence, taken all reasonable precautions to avoid the
commission of the offence.

They, however, held that Clement was not " another person " within the
meaning of section 24(1) (a) and so that the statutory defence failed. The
Divisional Court held that they were right to convict but wrong to conclude
that Clement was not " another person ". In their view, the Appellants had
delegated to Clement "their duly of taking all reasonable precautions and
"exercising all due diligence" and consequently his failure to do so was
failure by the Appellants.

Section 23 of the Act is in the following terms:

" Where the commission by any person of an offence under this Act
" is due to the act or default of some other person that other person
" shall be guilty of the offence, and a person may be charged with and
" convicted of the offence by virtue of this section whether or not
" proceedings are taken against the first-mentioned person ".

These provisions in the Act make its policy clear. To secure a conviction
for an offence under section 11 (2), the prosecutor is relieved of the burden
of proving any intent on the part of any person. If that burden rested
on him, it might often prove very difficult to discharge. It suffices to prove
(a) that the accused was offering the goods and (b) that, at the time he did
so, an indication had been given that the goods were being offered at a
price less than in fact was the case.

That could happen without the person offering the goods being in any
way to blame. Parliament, therefore, provided the accused person with
a number of defences and cast upon him the burden of establishing his
innocence. If he was going to allege that the events which took place and
amounted to the commission of the offence were due to the act or default
of another or in consequence of information supplied by another person,
he had to comply with section 24(2) and then it would be open to the
authorities to charge that other person, if they thought fit, but, whether
or not another person is charged, the accused is entitled to be acquitted if he
proves that he took all reasonable precautions and exercised all due
diligence to prevent the commission of the offence and that it was due to the

14

act or default of another or, if that is the defence put forward, in consequence
of information supplied by another.

Hammett Ltd. v. London County Council (1933) 97 J.P. R. 105
appears to be the first reported case where the extent of a statutory defence
similar in many respects to that in this case was considered. There the
prosecution was under the Sale of Food (Weights and Measures) Act, 1926.
There the Divisional Court (Lord Newart L.C.J., Avory and Acton J.J.'s)
dismissed the appeal against conviction on the ground that there was evidence
on which Quarter Sessions could arrive at the opinion that due diligence
was not used by the shop manager, an assistant at the shop being the

15

actual offender, and that for the purpose of the Act the company was
responsible for the absence of due diligence on his part though in all other
respects the company had exercised due diligence.

16

the accused does not appear to have taken any steps to ascertain whether
the person he had put in charge was doing what she had been instructed to do.
If he had taken any steps, he would have found that she was not, and that
is why I have said that on the facts in that case it would be difficult to say

that the exercise of due diligence had been proved.

" My Lords, a corporation is an abstraction. It has no mind of its
" own any more than it has a body of its own ; its active and directing
" will must consequently he sought in the person of somebody who for
" some purpose, may be called an agent, but who is really the directing
" mind and will of the corporation, the very ego and centre of the
" personality of the corporation. That person may be under the direc-
" tion of the shareholders in general meeting; that person may be the
" board of directors itself, or it may be, and in some companies it is so,
" that that person has an authority co-ordinate with the board of directors
" given to him under the articles of association, and is appointed by
" the general meeting of the company and can only be removed by the
" general meeting of the company ".

" A company may in many ways be likened to a human body. It has
" a brain and nerve centre which controls what it does. It also has hands

" which hold the tools and act in accordance with directions from the
" centre. Some of the people in the company are mere servants and
" agents who are nothing more than hands to do the work and cannot
" be said to represent the mind or will. Others are directors and
" managers who represent the directing mind and will of the company,
" and control what it does. The state of mind of these managers is the
" state of mind of the company and is treated by the law as such."

17

These passages, I think, clearly indicate that one has in relation to a
company to determine who is or who are, for it may be more than one, in
actual control of the operations of the company, and the answer to be given
to that question may vary from company to company depending on its
organisation. In my view, a person who is in actual control of the operations
of a company or of part of them and who is not responsible to another
person in the company for the manner in which he discharges his duties in
the sense of being under his orders, cannot be regarded as " another person "
within the meaning of sections 23 and 24(1)(a).

Section 20 provides that where an offence under the Act has been com-
mitted by a body corporate and is proved to have been committed with the
consent or connivance or to be attributable to any neglect on the part of
any director, manager, secretary or other similar officer of the body corporate
or any person who was purporting to act in any such capacity, he, as well
as the company, is to be guilty of the offence. Parliament by this section
may have attempted to identify those who normally constitute the directing
mind and will of a company and by this section have sought to make clear
that although they are not other persons coming within sections 23 and
24(1)(a), they may still be convicted.

However this may be, shop managers in a business such as that conducted
by the Appellants—and their number may be of the order of eight hundred
if the Appellants have that number of shops—cannot properly be regarded
as part of the Appellants' directing mind and will and so can come within
the reference to "another person" in sections 23 and 24(l)(a).

For the reasons I have stated in my view this appeal should be allowed.

Lord Pearson

MY LORDS,

In September, 1969, the Company (Tesco Supermarkets Limited) was
selling Giant Size packets of Radiant washing powder at a price of 2s. l1d.,
being a reduced price 1s. below the price of 3s.11d. which was the ordinary
price normally recommended by the manufacturers. Affixed to the window
of the company's shop at Northwich in Cheshire was a large poster, of which
the upper part bore the legend "Radiant 1s. off Giant Size 2s. 11d."
Advertisements to the same effect had been inserted in local and national
newspapers. Initially there was at the shop a stock of " flash packs ", that
is to say Giant Size packets of the washing powder bearing the legend
" 1s. off recommended price".

Things went wrong on the 25th and 26th September, 1969. The stock of
such " flash packs " was exhausted. On the evening of the 25th September
Miss Rogers, an assistant at the shop, discovered that no such " Hash packs "
remained on display, and she filled up the " fixture " with ordinary packets
of the washing powder marked with the ordinary price of 3s. 11d. and she
failed to inform the shop manager, Mr. Clements, of the dearth of flash
packs or the action which she had taken. Mr. Clements failed to check
the washing powder " fixture " on the 26th September, notwithstanding his
entry in his Weights and Measures Book for that morning " All special offers
" O.K." On the morning of the 26th September a customer entered the shop
expecting to find a " flash pack " at 2s. 11d. but was able to find only a packet
offered at the ordinary price of 3s. 11d. and he had to buy it at that price.
The relevant provisions of the Trade Descriptions Act, 1968, are as
follows:

Section 11 (2). "If any person offering to supply any goods gives, by
" whatever means, any indication likely to be taken as an indication
" that the goods are being offered at a price less than that at which
" they are in fact being offered he shall, subject to the provisions of
" this Act, be guilty of an offence."

18

Section 20(1). "Where an offence under this Act which has been
" committed by a body corporate is proved to have been committed with
" the consent and connivance of, or to be attributable to any neglect
" on the part of, any director, manager, secretary or other similar officer
" of the body corporate, or any person who was purporting to act in
" any such capacity, he as well as the body corporate shall be guilty
" of that offence and shall be liable to be proceeded against and
" punished accordingly."

Section 23. " Where the commission by any person of an offence
" under this Act is due to the act or default of some other person that
" other person shall be guilty of the offence, and a person may be
" charged with and convicted of the offence by virtue of this section
" whether or not proceedings are taken against the first-mentioned
" person."

Section 24(1). " In any proceedings for an offence under this Act
" it shall, subject to subsection (2) of this section, be a defence for the
" person charged to prove—

" (a) that the commission of the offence was due to a mistake or to
" reliance on information supplied to him or to the act or default
" of another person, an accident or some other cause beyond his
" control: and

" (b) that he took all reasonable precautions and exercised all due
" diligence to avoid the commission of such an offence by himself
" or any person under his control."

In my opinion, the first conclusions to be drawn from the application of
these provisions to the facts of the present case are as follows : —

" (ii) the commission of the offence was due to the act or default of
" the said Clement by his failure to see that the Appellants' policy
" was correctly carried out and/or to correct the errors of the staff
" under him;

" (iii) the Appellants had exercised all due diligence in devising a
" proper system for the operation of the said store and by securing
" so far as was reasonably practicable that it was fully implemented
" and thus had fulfilled the requirements of section 24(1)(b);

" (iv) the Appellants could not rely upon the act or default of the
" said Clement as he was not ' another person' within the meaning
"of section 24(l)(a)."

20

" the exercise of such diligence involves, or may involve, two things. First
" of all it involves the setting up of an efficient system for the avoidance of
" offences under the Act. Secondly it involves the proper operation of
" that system. Inevitably the second part, the operation of the system,
" will in most cases have to be delegated by the Company to employees
" falling outside those mentioned in section 20. The question which this
" court has to consider is whether a company can be said t6 have satisfied
" the requirements of paragraph (b) if it satisfies the justices that it has set
" up an efficient system, or a system which cannot be criticised, or whether
" it is deprived of the defence under that section if it is shown that there
" has been a failure by someone to whom the duty of carrying out the system
" was delegated properly to carry out that function." Later he said: " If it
" be the case that Mr. Clement was a person to whom the Appellants had
" delegated in respect of that particular shop their duty to take all reasonable
" precautions and exercise all due diligence to avoid the commission of such
" an offence, and if Mr. Clement had failed properly to carry out that duty,
" then the Appellants are unable to show that they have satisfied paragraph (b)
" of section 24 subsection (1)." The conclusion was: "It seems clear to
" me that a person in the position of Mr. Clement, the manager of a shop,
" a supermarket, is properly to be considered as being a person to whom
" the Appellants had, so far as concerned that shop, delegated their duty
" of taking all reasonable precautions and exercising all due diligence to
" avoid the commission of an offence; and it seems to me that in the light
" of the findings which I have just read, it was impossible for the magistrates
" to find that the Appellants had satisfied the requirements of paragraph (b)."
Fisher J. also cited the case of Series v. Poole [1969] 1 Q.B. 676, in which
it was held that the defendant was liable under section 186 of the Road
Traffic Act, 1960, and had failed to prove a defence under section 20 of
the Road Traffic Act, 1962, when he had " delegated " the checking of certain
records to a lady secretary and she had been negligent in the performance
of that task. In his judgment in that case Lord Parker C.J. had said at
pages 683-4—" If I can go by stages, the absolute obligation under section 186
"of the Act of 1960 is a personal obligation, personal in this sense, that
" if an employer, acting perfectly reasonably, puts some competent person
" in charge to perform his, the employer's, duty, the employer remains liable
" if the servant fails in his duty. ... He may, as I have said, acting
" perfectly reasonably appoint somebody else to perform his duty, his alter
" ego, and in that case, as it seems to me, if the alter ego fails in his duty
" the employer is liable. Equally, if the employer seeks to rely on the
" defence under section 20, he must show that the alter ego has used due
" diligence."

Clearly the Divisional Court's decision was based on the theory of " dele-
" gation ". One has to examine the meaning of the word " delegation " in
relation to the facts of this case and the provisions of the Trade Descriptions
Act, 1960, sections 11(2) and 24. In one sense the meaning is as wide as
the principle of the master's vicarious liability for the acts and omissions of
his servants acting within the scope of their employment. In this sense
the master can be said to " delegate " to every servant acting on his behalf
all the duties which the servant has to perform. But that cannot be the proper
meaning here. If the company " delegated " to Miss Rogers the duty of
filling the fixture with appropriate packets of washing powder, and " dele-
" gated " to Mr. Clement the duty of supervising the proper filling of fixtures
and the proper exhibition or withdrawal of posters proclaiming reduced
prices, then any master, whether a company or an individual, must be
vicariously liable for all the acts and omissions of all its or his servants acting
on its or his behalf. That conclusion would defeat the manifest object of
section 24 which is to enable defendants to avoid vicarious liability where
they were not personally at fault.

Section 24 requires a dividing line to be drawn between the master and any
other person. The defendant cannot disclaim liability for an act or omission
of his ego or his alter ego. In the case of an individual defendant, his ego
is simply himself, but he may have an alter ego. For instance, if he has
only one shop and he appoints a manager of that shop with full discretion

21

to manage it as he thinks fit. the manager is doing what the employer would
normally do and may be held to be the employer's alter ego. But if the
defendant has hundreds of shops, he could not be expected personally to
manage each one of them and the manager of one of his shops cannot in the
absence of exceptional circumstances be considered his alter ego. In the
case of a company, the ego is located in several persons, for example, those
mentioned in section 20 of the Act or other persons in a similar position
of direction or general management. A company may have an alter ego, if
those persons who are or have its ego delegate to some other person the
control and management, with full discretionary powers, of some section of
the company's business. In the case of a company, it may be difficult, and
in most cases for practical purposes unnecessary, to draw the distinction
between its ego and its alter ego, but theoretically there is that distinction.

It was suggested in the argument of this appeal that in exercising super-
vision over the operations in the shop Mr. Clement was performing functions
of management and acting as a delegate and alter ego of the company. But
supervision of the details of operations is not normally a function of higher
management: it is normally carried out by employees at the level of foremen,
chargehands, overlookers, floor managers and " shop" managers (in the
factory sense of " shop "). Also reference was made to the case of R. C.
Hammett Ltd. v. The London County Council [1933] 97 J.P. and L.G.R. 105,
in which, when the reported arguments are taken into account, the ground
of decision appears to have been that, for the purposes of the Sale of Food
(Weights and Measures) Act, 1926, sections 5(2) and 12(5), the employer had
to show due diligence on behalf of all the employees concerned except the
actual offender. In my opinion, there was no justification for drawing the
line of division between the company and its employees at that point, and
the case was wrongly decided. As to the case of Series v. Poole (supra),
the decision of the Divisional Court seems to have been in accordance with
the general merits of the case, but the treatment of the secretary as an
alter ego of the employer is difficult to uphold, when she had merely been
instructed by him to check the records and had failed to do so diligently.

I would allow the appeal.

Lord Diplock

MY LORDS,

This appeal turns on the meaning to be given to penal provisions contained
in the Trade Descriptions Act, 1968. The Act, which replaces the
Merchandise Marks Acts, 1887 to 1953, is concerned with consumer protec-
tion. It is a criminal statute and creates a number of offences of giving
inaccurate or inadequate information to customers in the course of business
transactions relating to the supply of goods or services. Offenders are liable
to a fine or to imprisonment for not more than two years or to both.

Nowadays most business transactions for the supply of goods or services
are not actually conducted by the person who in civil law is regarded as the
party to any contracts made in the course of the business, but by servants
or agents acting on his behalf. Thus, in the majority of cases the physical
acts or omissions which constitute or result in an offence under the statute
will be those of servants or agents of an employer or principal on whose
behalf the business is carried on. That employer or principal is likely to
be very often a corporate person, as in the instant appeal.

Consumer protection, which is the purpose of statutes of this kind, is
achieved only if the occurrence of the prohibited acts or omissions is
prevented. It is the deterrent effect of penal provisions which protects the

22

consumer from the loss he would sustain if the offence were committed. If
it is committed he does not receive the amount of any fine. As a taxpayer
he will bear part of the expense of maintaining a convicted offender in
prison.

The loss to the consumer is the same whether the acts or omissions which
result in his being given inaccurate or inadequate information are intended
to mislead him, or are due to carelessness or inadvertence. So is the
corresponding gain to the other party to the business transaction with the
consumer in the course of which those acts or omissions occur. Where, in
the way that business is now conducted, they are likely to be acts or omissions
of employees of that party and subject to his orders, the most effective
method of deterrence is to place upon the employer the responsibility of
doing everything which lies within his power to prevent his employees from
doing anything which will result in the commission of an offence.

" If any person offering to supply any goods gives, by whatever means,
" any indication likely to be taken as an indication that the goods are
" being offered at a price less than that at which they are in fact being
" offered he shall, subject to the provisions of this Act, be guilty of an
" offence."

23

" In any proceedings for an offence under this Act it shall, subject
" to subsection (2) of this section, be a defence for the person charged to
" prove—(a) that the commission of the offence was due to a mistake
" or to reliance on information supplied to him or to the act or default
" of another person, an accident or some other cause beyond his control;
" and (b) that he took all reasonable precautions and exercised all due
" diligence to avoid the commission of such an offence by himself or any
" person under his control."

" Where the commission by any person of an offence under this Act
" is due to the act or default of some other person that other person
" shall be guilty of the offence, and a person may be charged with
" and convicted of the offence by virtue of this section whether or not
" proceedings are taken against the first-mentioned person."

24

word "default" instead of the neutral expression "omission" connotes a
failure to act which constitutes a breach of a legal duty to act. A legal duty
to act may arise independently of any contract or it may be a duty owed
to another person arising out of a contract with him. That in paragraph (a)
the word "default" embraces a failure to act which is in breach by a
servant of his contract of employment, is, in my view, made apparent by
paragraph (b) which requires that a person who relies on this defence must
show " that he took all reasonable precautions and exercised all due diligence
" to avoid the commission of such an offence by ... any person
" under his control". This contemplates that the person charged has the
power to control the acts or defaults of the other person. The only legal
source of such power to control is contractual.

25

allocate these supervisory duties to some superior servant or hierarchy
of supervisory grades of superior servants, under their respective
contracts of employment with him. If the principal has taken all reasonable
precautions hi the selection and training of servants to perform supervisory
duties and has laid down an effective system of supervision and used due
diligence to see that it is observed, he is entitled to rely upon a default by a
superior servant in his supervisory duties as a defence under section 24(1),
as well as, or instead of, upon an act or default of an inferior servant who has
no supervisory duties under his contract of employment.

Thus, the supervisory servant may have failed to give adequate instruc-
tions to the inferior servant or may have failed to take reasonable steps to
see that his instructions were obeyed. In the former case the supervisory
servant may alone be to blame. In the latter both may be to blame. Or it
may be, as might have been the case in the instant appeal, the commission of
the offence is due to a combination of separate acts or omissions by two more
inferior servants none of which taken by itself would have resulted in the
commission of an offence.

In the instant case there were findings of fact by the magistrates that the
commission of the offence was due to the act or default of the Appellant's
servant Clement in his duties as branch manager to supervise the work of
the staff under him, and that the Appellants had fulfilled the requirements of
paragraph (b) of section 24(1). They had also fulfilled the requirements of
section 24(2) by serving a notice on the prosecutor identifying Clement as
the other person to whose act or default the commission of the offence was
due.

On these findings the Appellants were, in my view, entitled to succeed in
their defence under section 24. The magistrates, however, were of opinion
that Clement was not in law " another person " within the meaning of
paragraph (a) of section 24(1) and, accordingly, convicted the Appellants.

The magistrates, however, were of opinion that Clement was not in law
" another person " within the meaning of paragraph (a) of section 24(1) and,
accordingly, convicted the Appellants.

The Divisional Court were of opinion that Clement was " another person "
but achieved the same result by dismissing the appeal upon the ground that
under the Act a principal was personally responsible criminally for any failure
by any of his servants or agents to exercise diligence in supervisory functions
which he had required them to undertake.

The Divisional Court in reaching this conclusion did not rely upon the fact
that the Appellants are not a natural person but a corporation. But, before
turning to the previous authorities which the Divisional Court felt bound to
follow, it is convenient to deal with the legal consequences of the corporate
character of the Appellants, for this has been relied upon by the Respondent
in your Lordships' House as an alternative ground for dismissing the appeal.

To establish a defence under section 24 a principal who is a corporation
must show that it " took all reasonable precautions and exercised all due
" diligence." A corporation is an abstraction. It is incapable itself of
doing any physical act or being in any state of mind. Yet in law it is a
person capable of exercising legal rights and of being subject to legal
liabilities which may involve ascribing to it not only physical acts which are
in reality done by a natural person on its behalf but also the mental state
in which that person did them. In civil law, apart from certain statutory
duties, this presents no conceptual difficulties. Under the law of agency
the physical acts and state of mind of the agent are in law ascribed to the
principal, and if the agent is a natural person it matters not whether the
principal is also a natural person or a mere legal abstraction. Qui facit per
alium facit per se: qui cogitat per alium cogitat per se.

But there are some civil liabilities imposed by statute which, exceptionally,
exclude the concept of vicarious liability of a principal for the physical acts
and state of mind of his agent; and the concept has no general application
in the field of criminal law. To constitute a criminal offence, a physical
act done by any person must generally be done by him in some reprehensible
state of mind. Save in cases of strict liability where a criminal statute.

26

exceptionally, makes the doing of an act a crime irrespective of the state
of mind in which it is done, criminal law regards a person as responsible
for his own crimes only. It does not recognise the liability of a principal
for the criminal acts of his agent: because it does not ascribe to him his
agent's state of mind. Qui peccat per alium peccat per se is not a maxim
of criminal law.

27

to the contrary in The Lady Gwendolen ([1965] P. 294) they were not
necessary to the decision and, in my view, they were wrong.

My Lords, there may be criminal statutes which upon their true con-
struction ascribe to a corporation criminal responsibility for the acts of
servants and agents who would be excluded by the test that I have stated
to be appropriate in determining whether a corporation has itself committed
a criminal offence. The Trade Descriptions Act, 1968, however, so far from
containing anything which compels one to reject that test, recognises, by
section 20, the distinction between " any director, manager, secretary or
" other similar officer of a body corporate" and other persons who are
merely its servants or agents.

Section 20(1) provides as follows: —

" Where an offence under this Act which has been committed by a
" body corporate is proved to have been committed with the consent
" and connivance of, or to be attributable to any neglect on the part
" of, any director, manager, secretary or other similar officer of the
" body corporate, or any person who was purporting to act in any such
" capacity, he as well as the body corporate shall be guilty of that
" offence and shall be liable to be proceeded against and punished
" accordingly ".

The natural persons described in this subsection correspond with those
who under the Memorandum and Articles of Association of a company
exercise the powers of the company itself. From this it follows that if
any of them is guilty of neglect in the exercise of those powers such neglect
is that of the company itself. That it cannot be relied upon as " the act or
" default of another person ", so as to entitle the company to a defence under
section 24(1), is implicit in the provision in section 20(1) that a person in the
described category shall be guilty of an offence " as well as the body
" corporate ". Without section 20 it would have been open to doubt whether
persons whose acts were in law the acts of the company itself would have
been guilty in their personal capacity also of the offence committed by the
company.

For these reasons I agree with the Divisional Court that Clement was
" another person " within the meaning of section 24(l)(o). So all that now
remains is to deal with the authorities which that court followed in holding
that the Appellant's defence nevertheless failed.

Those authorities start with the contrasting cases of Hammett Ltd. v. Crabb
([1931] 29 Cox C.C. 364) and Hammett Ltd. v. L.C.C. ([1933] 97 L.G.R. 105).
Both were prosecutions under the Sale of Goods (Weights and Measures)
Act, 1926. The relevant provisions of that Act exempted the employer
from any penalty, though not from conviction, if he proved that he had
used "due diligence to enforce the execution of this Act". But his right
to exemption was conditional upon his laying an information against the
person whom he charged as " the actual offender " and proving that that
person had committed the offence in question. In Hammett Ltd. v. Crabb
the employer charged as the actual offender his servant who had done the

28

physical act which constituted the offence and that servant had been duly
convicted. The Divisional Court held that the employer was entitled to rely
upon his having used due diligence. In Hammett Ltd. v. L.C.C. the
employer again charged as " the actual offender " his servant who had done
the physical act which constituted the offence. But the servant charged was
acquitted by the magistrates—which would seem to dispose of any claim
by the employer to be exempt from the penalty, as the Divisional Court had
itself previously decided in Wakling v. Robinson (1930 46 T.L.R. 151). The
employer, nevertheless, appealed to Quarter Sessions. Quarter Sessions found
as a fact that a servant of the employer who was manager of the shop had
not used due diligence in supervising the servant who had been charged
(and acquitted) as the actual offender, though in all other respects the
employer had exercised due diligence. The case stated by Quarter Sessions
for the opinion of the Divisional Court appears to have been treated as
raising the question of law as to whether, in order to avail himself of the
exemption from penalty, the employer had to prove that due diligence had
been used not only by himself but also by all of his servants who exercised
supervisory functions " down to the very person who had committed the act".
The Divisional Court apparently thought that the employer had to do so
and that this distinguished the case from Hammett Ltd. v. Crabb. But the
language of the judgment is far from clear and affords no clue to the reasons
which led the court to this conclusion.

^ Although Hammett Ltd. v. L.C.C. was cited in argument in the Divisional
Court, Lord Parker C.J. preferred to decide the case as " purely one of
" principle." That principle he stated as being: " if Parliament has put an
" absolute duty on some individual, he cannot evade that duty by delegating
"it to someone else". So far the principle is unexceptional. Any legal
duty, whether arising at common law or imposed by statute, may generally
be performed by the person upon whom it is imposed through the agency

29

of some other person. But if it is not performed, the person upon whom
the duty is imposed is liable for its non-performance. It is irrelevant that he
instructed a servant or agent to perform it on his behalf, if that servant
or agent failed to do so. All that is relevant is that the duty was not per-
formed. When the duty is imposed upon a person by statute and non-
performance is made a criminal offence without any requirement of mens rea
this is what is meant by an offence of " strict liability ".

(314455) Dd. 197055 100 3/71 St. S.