Report No. 29
66. Vicarious liability.-The question of vicarious penal responsibility also falls to be considered, in this context. The rule at common law is that (subject to certain exceptions), a master is not vicariously responsible for the crimes of his servants1-2-3.
1. Kenny Outlines of Criminal Law, (1962), pp. 38, 42, 43, 48 and 49.
3. See discussion in Glanville Williams Criminal Law, The General Part, (1961), pp. 267 to 269, para. 92.
4. See S. Prevezer's article in 16 MLR 236, for a general discussion.
67. Modification by Statute.-His common law rule1 may undergo a modification in relation to special enactments. The liability so imposed may be vicarious either in relation to the actus reus, or in relation to themens rea. The method by which such modification is achieved is two-fold. There may be statutory provisionscreating vicarious responsibility, by using words such as "no person shall either by himself or by any servantor agent" do some acts2-3.
1. Para. 66, supra.
2. See examples of English Acts cited in Glanville Williams Criminal Law, The General Part, (1961), p. 269, footnotes.
3. Compare section 9B, Opium Act (1 of 1878), as inserted by Bengal Act 5 of 1933.
68. Besides such statutory modifications1, there may be a modification as a result of judicial construction. A statute may be so construed as to render a person criminally liable for the acts of his servants; and, such a construction might be more easily adopted in relation to special enactments; having regard to their subject-matter2-3-4-5.
This seems to be particularly so in the case of "public welfare offences"6-7.
Vicarious liability for statutory offences is, in many cases, justified on the principle, that if a master chooses to delegate the conduct of his business to a servant, then, if the servant in the course of conducting the business, does an act which is absolutely prohibited, the master is liable8. On the other hand, where intent is a necessary element, as in attempt, the doctrine of vicarious liability may be negatived9. The link between vicarious liability and absolute prohibition can be seen in the following observations:-
"A master who is not participant in the offence can only be liable criminally for the acts of his servant if the statute which creates the offence does so in terms which impose an absolute prohibition."10
The following observations of Channell J. with reference to a case under the Weights and Measures Act, 187811, illustrate this aspect12:-
"[The Act] is within the class of statutes under which persons may be convicted for acts of their servants in respect of which they are not in any real sense culpable. Mens rea is not an element in the offence The offence is within that class where the legislature has absolutely prohibited certain acts being done, with the consequence that if they are done-although by a servant of the employer-done in any sense in the course of the employment, so that for some purposes the maxim qui facit per alium, facit per se applies-the employer may be convicted although he is not in any way morally culpable."
1. See para. 67, supra.
2. For the position in England, see
(i) Cross and Jones Introduction to Criminal Law, (1964), pp. 96, 98;
(ii) Kenny Outlines of Criminal Law, (1962), pp. 38, 42 and 48, paras. 28, 32 and 35.
(iii) Glanville Williams Criminal Law, The General Part, (1961), pp. 270-285.
3. For the position in Australia, see
(i) Proudman v. Dayman and the judgment of Dixon J. therein, (1953) 67 CLR 536 (540);
(ii) Thomas v. R., (1937) 59 CLR 279, (300, 305) (Dixon J.);
(iii) Note by Colin Howard in 67 L.Q.R. 547; and
(iv) Colin Howard Strict Responsibility, (1963), Ch 7.
4. For the position in America, see Perkins Criminal Law, (1957), pp. 695 to 697.
5. For Indian case Law see Uttam Chand v. Emp., AIR 1945 Lah 238 (246 to 248) (FB).
6. See Glanville Williams Criminal Law, The General Part, (1961), p. 282, middle.
7. See also Yeandel v. Fisher, (1965) 3 WLR 1002 (1007), (per Lord Parker C.J.).
8. Cf. Barker v. Levinson, (1951) 1 KB 342: (1950) 2 All ER 825 (827) (Lord Goddard C.J.).
9. Gardner v. Akeroyd, (1952) 2 All ER 306 (310, 311).
10. Gardner v. Akeroyd, (1952) 2 All ER 306 (310) (per Lord Goddard C.J.).
11. The Weights and Measures Act, 1878 (41 and 42 Vict. c. 49, section 25).
12. Anglo-American Oil Co. Ltd. v. Manring, (1908) 1 KB 536 (541).
69. As was observed by the House of Lords in a recent case1, the number of statutes which may give rise to the question of vicarious criminal liability is "regrettably great", and the language "very far from uniform". But the effect of the numerous cases on the subject appears to be, that (subject to certain exceptions), where the scope and purpose of the relevant Act is the maintenance of proper and accepted standards of public order in licensed premises or other comparable establishments, there arises under the legislation what Channell J.2called a "quasi-criminal offence", which renders the licensee or proprietor criminally liable for the acts of his servants, though there may be no mens rea on his part.
1. Vane v. Yiannopoullos, (1964) 3 WLR 1218 (1228) (HL) (per Lord Evershed).
2. See para. 72, infra.
70. An elaborate analysis of the methods whereby the statute itself may create vicarious liability is found in the judgment of Lord Morris1:-
"It is open to Parliament to provide that a particular act is wrongful and that a person who does the act is guilty of an offence. In general our criminal law requires that there should be mens rea in order to establish guilt. (i) Parliament may, however, enact that mens rea is not necessary. There may be strict liability. (ii) So also it might be enacted that a person is guilty of an offence if his servant or agent does some act and does it with mens rea. It might be enacted that a person is guilty of an offence if some other person not his servant or agent does some act and does it with mens rea. It might be enacted that a person is guilty of an offence if there is mens rea either in him or in the person doing the act. (iii) It might be enacted that a person is guilty of an offence if an act is done by some other person even though there is no mens rea in any one."
1. Vane v. Yiannopoullos, (1964) 3 WLR 1218 (1230) (HL) (per Lord Morris of Borth-y-Gest). (Numerals indicating items added).
71. This aspect of special enactments creating "quasi-criminal offences" has been thus put by Lord Devlin1:-
"The first distinguishing mark of the quasi-criminal law then, is that a breach of it does not mean that the offender has done anything morally wrong. The second distinguishing mark is that the law frequently does not care whether it catches the actual offender or not. Owners of goods are frequently made absolutely liable for what happens to the goods while they are under their control even if they are in no way responsible for the interference; an example is when food is contaminated or adulterated. Likewise, they may be made liable for the acts of their agents even if they have expressly forbidden the act which caused the offence.
This sort of measure can be justified by the argument that it induces persons in charge of an organisation to take steps to see that the law is enforced in respect of things under their control. In some of our colonies where the police force is sparse and the population scattered, and the detection of crime exceptionally difficult, the law provides for imposing a collective fine on a village where there has been disorderly behaviour. That helps to ensure that the inhabitants will keep order among themselves. In England a more refined form of vicarious liability prevails. The majority of quasi-criminal offences are committed in the course of trade or commerce, and the fines that are imposed in respect of them fall upon the shareholders of a limited company or the proprietors of the business."
1. Devlin, Enforcement of Morals, (1965), p. 30.