Vehicle Operator Services Agency v FM Conway Ltd

An offence requiring a specific intent is not ordinarily one of strict liability merely because it is committed by a company. The prosecution must establish a basis for attributing the necessary criminal intention to the company. Delegation of an operational area to a senior employee who is not a director or company officer does not, without more, make that employee the company’s directing mind. In particular, an intent to deceive must be shown in those with general direction of the company or equivalent authority. The established “brains rather than hands” principle remains applicable, subject to the statutory wording and the facts of each case.

This was a prosecutor’s appeal by the Vehicle Operator Services Agency against the dismissal by Bexley Magistrates’ Court of a charge against FM Conway Ltd under section 38 of the Goods Vehicles (Licensing of Operators) Act 1995. The company was alleged to have lent or allowed its operator’s licence identity disc to be used by a subcontractor with intent to deceive.

The magistrates held that the offence was not one of strict liability and that the evidence did not establish that the employee responsible for administering the operator’s licence was part of the company’s “brains”, or that a director or company officer had the requisite knowledge and intent.

1. The appeal was dismissed. The offence under section 38 of the Goods Vehicles (Licensing of Operators) Act 1995 was not one of strict liability. The company could not be convicted without evidence capable of establishing the required intent to deceive.
2. The relevant authorities, including Hill & Sons (Botley & Denmead) Ltd v Chief Constable of Hampshire [1972] RTR 29, Ross Hillman Ltd v Bond [1974] RTR 279 and P Lowery & Sons Ltd v Wark [1975] RTR 45, established that where a mental element is required, the company must be fixed with the relevant mens rea through persons who can fairly be described as its directing mind or “brains”, rather than merely its operational hands.
3. That principle was not displaced where responsibility for a significant operational area had been delegated to a senior employee who was neither a formally appointed director nor a company officer. Criminal liability required the necessary intention to be established in those having general direction of the company, particularly where the offence required an intent to deceive.
4. The magistrates were entitled to conclude that Mr Hedderman was not shown to be part of the company’s brains and that there was no evidence from which a reasonable tribunal could infer that a company officer knew the relevant facts at the material time. The three questions stated by the magistrates were therefore answered “No”.
5. The respondent’s costs were to be assessed if not agreed, with an interim payment of £4,000 within 28 days.

• High Court (Administrative Court): The prosecutor’s appeal by way of case stated from the dismissal by Bexley Magistrates’ Court was dismissed.