One small part of Rob's
really interesting message is perhaps the least interesting to this group, but
he ends on a comparison with criminal law and I can answer. English law,
Jamaican Law and perhaps others influenced by the UKPC, changed in 2016 here, with
R v Jogee [2016] UKSC 8; UKPC 7. He asked:
"If we look beyond the law of torts, if I procure you to commit an act
which constitutes a crime, is it necessary to show that I knew it was a crime?
Or does it suffice that I procured the actions that constituted the crime, and
personally had whatever mens rea that that crime requires? And if the crime has
no mens rea requirement (and torts properly so-called never have a mens rea
requirement) I should be criminally responsible."
I'll break that into two:
Q1) if I procure you to commit an act which constitutes a crime, is it
necessary to show that I knew it was a crime?
Q2) Or does it suffice that I procured the actions that constituted the
crime, and personally had whatever mens rea that that crime requires? And if
the crime has no mens rea requirement I should be criminally responsible.
A1. There is no general requirement in English criminal law that you knew
your conduct was criminal, whether you are a princiapal or an accessory. Most
common law systems don't have that requirement. Many civilian systems provide
something like a rule that a reasonable mistake about the law reduces or
removes liability (I put that vaguely, as it could in a defence, or it could be
as part of the confirmation of a requirement of liability, as the
German-derived scheme is a lot more complex than the AR + MR + lack of defences
that the common law uses).
There are some specific places where your mental state about the law can
become relevant to your criminal liability, which is normally where a statute
expressly makes it relevant. An example is what used to be commonly called the
colour of right defence, that you believed you were in law the owner of
property, and thus were statutorily not dishonest under s. 2 of the Theft Act
1968. On the other hand, if you mistakenly believe you are breaking the law,
you are not liable for an impossible attempt to break the law by doing
something that in fact was not prohibited, i.e., he was breaking what he
thought was the law (see, e.g., R v Taafe [1984] AC 539).
English law does require that the accessory know of what would make the
principal's conduct criminal in fact. That is, S would need to know what would
make P's conduct problematic. If P asks S to borrow S's carving knife, it would
be absurd to say S should be liable for the murder P commits with it, is S had
had no inkling that a murder was planned. We used to formulate this in terms of
S needing to know the "essential elements" of P's offence (Johnson v
Youden), but post Jogee ([9] and [16]) we talk of S knowing what P had done or
planned enough to know the things that in fact make it criminal.
A2 to Q2 (Or does it suffice that I procured the actions that constituted
the crime, and personally had whatever mens rea that that crime requires? And
if the crime has no mens rea requirement I should be criminally responsible.)
Procuring was not actually discussed in Jogee, but it is commonly thought
still to exist. In practice, "assisting or encouraging" covers most
conduct. I argue that one cannot "assist" without furthering the
purpose of P, but there's no formal test for the difference. Procuring tends to
be used where there is no communication with P, and in fact, where there is no
further of P's purpose.
Prior to Jogee, there were a trio of cases that suggested it was possible
for S to be liable for procuring P committing the AR of an offence, where in
fact P is not liable. That's pretty interesting stuff, but I won't bore you
all. Post Jogee it seems to have been removed. That's because where the offence
requires MR, S must intend P to have that MR. It is possible that S intend P
have the MR, but in fact P doesn't. However, in the scenarios we had seen
before, S was trying to be sure P did not have the MR (one example was S
tricking his (apparently gullible) friend P into having sex with S's wife,
saying she consented to but would pretend to resist: S knew P would not carry
out the act if he believed S's wife did not consent).
Where P is in fact innocent in terms of fault, whether because P had no
capacity, or did not know what was needed (e.g., the postperson delivering a
letter bomb without knowing what it was), then the doctrine of innocent agency
means that peson falls out of the picture, and the other person, who would have
been S, becomes P. Some have argued that it is not possible to do certain acts
"through" another, such that innocent agency doesn't work there.
Indeed, that's why the procuring the AR of an offence was argued as a
possibility, for sex offences, and in fact for driving offences. I do not find
that persuasive, and after Jogee, it doesn't work anyway.
If you wanted more and my personal views on some of this (!) see M Dyson,
“The contribution of complicity” (2022) 86 Journal of Criminal Law 389-419 and
“Principals without distinction” [2018] Crim LR 293-317. There's an ongoing
attempt in Parliament to change the law using the arguments from the 2022 piece
if interested.
Finally, the Serious Crime Act 2007, ss. 44-50 contains provisions for
inchoate assistance and encouraging with do pick up part of what Rob asked. The
Act replaced the law of incitement, and added "facilitation", i.e.,
trying to help another commit a crime, but without needing the crime to take
place before the person trying to help is liable. The Law Commission drafted a
vaguely sensible (but still open to doubt) set of provisions, but then
Parliament dramatically expanded them. They are also very complex in places,
with the result that they are not charged often. However, they do contain a
provision which says that where A encourages or assists B to commit a crime,
intending (or believing) B to do the relevant Act which constitutes the crime,
but where B does not have the MR for it, A is liable if A (were A to do it) had
the relevant MR: s. 47(5)(a)(iii): https://www.legislation.gov.uk/ukpga/2007/27/part/2.
All best wishes,
Matt
On
15/05/2024 17:33, Norman Siebrasse wrote:
Canadian law is to the same effect, albeit with different
reasoning, with the leading cases in the patent context. I discuss the issue in
my article Liability of Corporate Officers in Intellectual Property Law,
(2020), 63 CBLJ 159. The practical issue is that a claim against the director
or officer is usually brought for settlement leverage, and while patent
infringement is a strict liability tort, it is often essentially impossible to
know ex ante whether a particular act is infringing, so there would be a
chilling effect on legitimate activity if directors and officers were held
liable for directing acts of infringement.
Here is the abstract. If anyone is interested, email me and I will
send you a copy of the article.
Mentmore Manufacturing Co. v. National Merchandise Manufacturing
Co. is the leading Federal Court of Appeal decision on the personal liability
of directors and officers. This article shows that under Mentmore, personal
liability will not normally be imposed on directors and officers acting
in good faith in the conduct of the business, unless the director or officer
knew of, or was indifferent to, the likely wrongfulness of the conduct, even
when such intent or knowledge is not an element of the underlying wrong.
This contrasts with the leading decision of the Ontario Court of Appeal, ADGA
Systems International Ltd. v. Valcom Ltd., which held that officers
and directors and employees of corporations are generally personally
liable for their tortious conduct even though that conduct was directed in a
bona fide manner to the best interests of the company. This article argues that
Mentmore provides a sound framework for further development of the law, which
addresses the serious policy considerations acknowledged by the Ontario Court
of Appeal in ADGA.
Norman
An interesting decision of the UKSC adopting a restrictive
approach to the accessory liability of those procuring a tort: Lifestyle
Equities v Ahmed [2024] UKSC 17. As presently informed I think it is wrong,
but it fits with the modern orthodoxy of how accessory liability should and
does work (which I do not share): see for the best longform treatment P Davies Accessory
Liability (2015) ("excellent book" [137])
A company infringes the claimant's trademark. Can the directors of
the company be liable for the tort committed by the company?
On what I suppose we must now call the orthodox approach, someone
who procures the wrong of another is not committing the wrong itself. Rather,
there are a set of rules for accessories, under which a third party can be held
liable despite not having themselves committed a wrong. ([27]).
On this approach, procuring a trespass, procuring a breach of
contract, procuring a breach of trust/fiduciary duty, and procuring (as here) a
statutory wrong all form part of the same family. As is well known, accessory
liability in equity for breach of trust requires some kind of knowledge or
dishonesty. Procuring breach of contract under Lumley v Gye requires
knowledge that what is being procured is a breach of contract. It therefore
seems to follow that other forms of procurement should also require knowledge
of the wrongfulness of the action. So, the court conclude that "knowledge
of the essential features of the tort" are necessary ([137]). Where, as
here, the directors weren't proven to know of the trade mark that the company
was infringing, no liability.
My own view, for what it is now worth, is that this is wrong.
There are various ways, both inside and outside the law, by which we can act
through other people. If your actions are attributed to me, they are mine too.
The actions for which we are responsible are not confined to the movements of
our own bodies (indeed sometimes, and conversely, we aren't responsible for the
movements of our own bodies, as in cases of automatism).
Traditionally, we express the idea that your actions are also mine
in the Latin tag qui facit per alium facit per se (he who acts through
another acts himself). The law then has (normatively necessary) rules for
determining attribution of action: authorisation, ratification. procurement and
conspiracy (but not mere facilitation or assistance).
If therefore I authorise you to walk on another on another's land,
honestly and reasonably believing that they give permission, if you do the
authorised act on my behalf, it is then attributed to me. If there in fact was
not permission, you commit the tort of trespass, and so do I. My knowledge of
whether the authorised act was wrongful was irrelevant. I think the same rule
had applied in cases of conspiracy (I don't think the conspirators in the
famous Brooke v Bool knew that what they were agreeing to do could be
wrongful.
That is why those who authorise, ratify, procure or conspire are joint
tortfeasors. Because they do, in law, commit the action which constitutes
the tort, alongside the person they authorise, procure, ratify, or conspire
with.
But if that is right, "accessory liability" for breach
of trust or breach of contract must be based on some other principle. If your action
in not performing a contract is attributed to me, I am not liable for
breach of contract because I do not owe the contractual duty.
So, I do not think it follows that because we require dishonesty
or knowledge for liability for procuring breach of contract or breach of
fiduciary duty, that we should also require it for procuring the commission of
torts, regardless of whether the tort is found in the common law or statute.
You can, I think, show that the "attribution of action"
view is correct by thinking of situations where the party procured to act
commits no wrong. If I procure you to publish a libel in circumstances of
qualified privilege, if I am motivated by malice, but you are not, I the
procurer am liable, even though the primary actor is not. Similarly, if I
procure you to make a statement that I know to be false, but you do not, I
should potentially be liable in deceit, but you should not. Conversely, if I
procure you to commit the breach of a statutory duty that you owe, but I do
not, that alone should not be actionable (unless the statute says I am).
Further , the rules for holding third parties liable for breach of
contract or breach of trust are much more restricted than the rules for the
attribution of action in other ways. If I authorise you to break a contract, or
agree with you that you'll breach a fiduciary duty, those things do not suffice
to hold me, a party who is not subject to the primary duty, potentially liable.
(Those who adopt the general accessories idea tend to also argue for its
expansion to cover these cases).
If that is right, I am not at all sure that the directors should
not have been liable here. (I completely agree with the court that there is no
special immunity for agents or directors in play.) If we look beyond the law of
torts, if I procure you to commit an act which constitutes a crime, is it
necessary to show that I knew it was a crime? Or does it suffice that I
procured the actions that constituted the crime, and personally had whatever
mens rea that that crime requires? And if the crime has no mens rea requirement
(and torts properly so-called never have a mens rea requirement) I should be
criminally responsible.
[The case also contains some valuable discussion of when and why
an account of profits is available, with which I have, perhaps unsurprisingly,
no disagreement.]
--
--
Professor of Civil and Criminal Law
Director of the Institute of European and Comparative Law
Faculty of Law, University of Oxford
matthew.dyson@law.ox.ac.uk
Global Professor of Law, The University of Notre Dame (USA) in England
Associate Member of 6KBW College Hill
Matthew Dyson, Explaining Tort and Crime (CUP, 2022), available here:
https://www.cambridge.org/gb/academic/subjects/law/private-law/explaining-tort-and-crime-legal-development-across-laws-and-legal-systems-18502020?format=HB