Balmer & Ors v. Her Majesty's Advocate [2008] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Eassie

Lord Wheatley

Lady Paton

Misc 119/07

Misc 121/07

Misc 120/07

2008 HCJAC 44

OPINION OF THE COURT

delivered by LORD ~~MACFADYEN~~EASSIE

in the petitions

to the nobile officium of the

High Court of Justiciary

(First) THOMAS WILLIAM BALMER,

(Second) ANNE BALMER, and

(Third) ALAN THOMAS BALMER

Petitioners;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: (First Petitioner) Brodie; Levy & McRae, Glasgow

(Second Petitioner) ~~Duguid~~ Stacey, Q.C., ~~Anderson~~Balfour; HBM Sayers, Glasgow

~~The Anderson Partnership.~~

(Third Petitioner) ~~Stacey~~ ~~Duguid~~Anderson Q.C., Balfour; ~~HBM Sayers, Glasgow~~

Alt: Bain Q.C., A.D., Gill; Crown Agent.; The Anderson Partnership.

~~February 2008~~25 July 2008

Introduction

[1] Each of the three petitioners, Thomas William Balmer, Anne Balmer and Alan Thomas Balmer, has presented a petition to the nobile officium of the High Court of Justiciary. The three petitions are in similar terms and raise the same issue relating to tthe competency of an indictment brought by the respondent against "Rosepark Care Home also known as Rosepark Nursing Home, a now dissolved firm". The petitions were heard together.

[2] The first and second petitioners are husband and wife, and the third petitioner is their son. They formerly carried on business in partnership under the firm name of Rosepark Care Home (or Rosepark Nursing Home). The firm formerly owned and operated a care home ("the home") under that name at 261 New Edinburgh Road, Viewpark, Uddingston. The firm was dissolved, apparently by agreement among the partners, on 28 February 2005. It is hereinafter referred to, as the context requires, as "the firm" or "the dissolved firm".

[3] It is alleged by the respondent that on 31 January 2004 a fire occurred at the home, and that as a result fourteen residents in the home died, four others were injured and the remaining twenty two were evacuated.

The present indictment

[4] The respondent has served on each of the petitioners an indictment in inter alia the following terms:

"ROSEPARK CARE HOME also known as ROSEPARK NURSING HOME, a now dissolved firm, in respect of which Thomas William Balmer ... Anne Balmer ... and Alan Thomas Balmer .....are the whole surviving partners thereof, and which firm between the dates of 1 April 1996 and 28 February 2005 at 261 New Edinburgh Road, Viewpark, Uddingston, carried on the business or undertaking of a residential care home; ...

you are indicted at the instance of The Right Honourable ELISH ANGIOLINI, Queen's Counsel, Her Majesty's Advocate, and the charges against you are that ...".

The indictment contains seventeen charges against the firm.

[5] A second accused has also been indicted, namely Balmer Care Homes Limited, and fourteen separate charges are laid against that company in respect of the conduct of a different care home. These petitions are not concerned with the charges brought against Balmer Care Homes Limited.

[6] Each charge libelled against the firm is a charge of contravention of a statutory provision. All the charges against the firm proceed on an averment that the firm was at the material time an employer in terms of the Health and Safety at Work etc. Act 1974 ("the 1974 Act"). It is unnecessary to set out the terms of the charges in detail. Charge 1 may be taken as an example. It libels that between 1 April 1996 and 31 January 2004 at the home the dissolved firm did carry on the business or undertaking of a residential care home registered to provide care and nursing for up to 43 residents in the categories of frail elderly, elderly with mild mental illness, terminally ill and young physically disabled, and being an employer in terms of the 1974 Act, did fail to conduct its undertaking in such a way as to ensure so far as was reasonably practicable that persons not in its employment who might be affected thereby were not thereby exposed to risks to their health and safety, and did fail to devise, institute, implement and maintain an adequate and effective system or strategy for fire safety at the home. There then follow averments giving further specification of the alleged failures. The narrative then sets out the occurrence of the fire on 31 January 2004, and the consequent death and injury of named residents. The charge concludes by stating that in these circumstances there was a contravention of sections 3 and 33(1)(a) of the 1974 Act.

The previous indictment

[7] In order to understand how matters have developed, it is necessary to note certain events that preceded the service of the present indictment. On 9 December 2005 the petitioners appeared at Hamilton Sheriff Court to answer a petition at the instance of the Procurator Fiscal which charged them with certain contraventions of the 1974 Act. The statutory provisions which they were alleged to have contravened placed duties on employers. The petition narrated that they were at the material times partners in the firm, and that they were employers in terms of the 1974 Act.

[8] On or about 14 August 2006 an indictment was served on the petitioners charging them with certain contraventions of the 1974 Act and related statutory provisions. Again, the statutory provisions which they were alleged to have contravened placed duties on employers. The indictment contained averments that the petitioners were at the material times partners in the firm and were employers in terms of the 1974 Act. Further indictments in the same terms were subsequently served.

[9] At a preliminary hearing on 19 and 20 February 2007 Lord Hardie sustained pleas to the relevancy of the indictment against the petitioners, and dismissed it. He did so on the ground that the employer of those working at the home was at the material time the firm; that the firm was a separate legal person from the partners; and that accordingly the petitioners were not employers in terms of the 1974 Act.

[10] The respondent appealed against Lord Hardie's decision, but at the hearing of the appeal on 27 June 2007 abandoned it.

The petitions

[11] Following the abandonment of the appeal, the present indictment, summarised in paragraphs [4] and [5] above, and relative citations were served on the petitioners. They each presented a petition to the nobile officium of this court. The remedies which they sought were (a) declarator that the dissolved firm had not been competently indicted; (b) dismissal of the purported indictment; (c) declarator that the petitioners were not "accused" within the meaning of section 66 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") and thus under no compulsion to attend court in answer to the purported citations served on them; and, (d) in any event, declarator that in the event that the dissolved firm was convicted, the Crown might not recover from the petitioners any penalty imposed on the dissolved firm.

[12] In her Answers to the petitions, the respondent admitted that the only parties to the indictment proceedings were herself and the accused, the accused being (1) the firm and (2) Balmer Care Homes Limited. It was averred that the Crown did not consider the petitioners to be parties to the proceedings.

[13] The respondent pleads that the petitions are incompetent. The issues raised by that plea are not, however, readily separable from those relating to the merits of the petitions. At a procedural hearing on 25 September 2007 the petitions were accordingly appointed to a conjoined full hearing on the whole issues therein. When the petitions came before the court for the latter hearing, it was agreed among the parties and accepted by the court that, notwithstanding the respondent's plea to competency, the petitioners would address the court first.

[14] In the very briefest outline, the petitioners' contention is that the firm was a legal person which ceased to exist when it was dissolved on 28 February 2005, and that it therefore could not thereafter be indicted. The present indictment is therefore incompetent. The respondent's contention, also in briefest outline, is that a partnership continues to exist after dissolution for the limited purpose of winding up its affairs and settling its outstanding liabilities; that the former partners continue to have authority to act on the firm's behalf for that limited purpose; and that the present indictment against the firm is such an outstanding liability. The present indictment is therefore competent.

The Partnership Act 1890

[15] The issues between the parties to the petitions turn on aspects of the law of partnership. The law of partnership is partially codified in the Partnership Act 1890 ("the 1890 Act"), and it is convenient at this stage to set out for reference those provisions of it which are relevant to the issues which will be discussed.

[16] Section 1(1) of the 1890 Act deals with the definition of partnership, and provides:

"Partnership is the relation which subsists between persons carrying on a business in common with a view of profit."

[17] Section 4 deals with the meaning of firm. Subsection (1) provides:

"Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm, and the name under which their business is carried on is called the firm-name."

[18] Section 4(2) provides:

"In Scotland a firm is a legal person distinct from the partners of whom it is composed, but an individual partner may be charged on a decree or diligence directed against the firm, and on payment of the debts is entitled to relief pro rata from the firm and its other members."

[19] Section 5 deals with the power of partners to bind the firm, and provides:

"Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner."

[20] Section 38 deals with the continuing authority of partners for the purposes of winding up. It provides inter alia as follows:

"After the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue notwithstanding the dissolution so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise."

[21] Section 46 provides:

"The rules of equity and of common law applicable to partnership shall continue in force except so far as they are inconsistent with the express provisions of ~~the~~ this Act."

Submissions for the petitioners

[22] The submissions for the first petitioner were made on his behalf by Mr Brodie. Mrs Stacey for the second petitioner, and Mr Duguid for the third petitioner, each adopted Mr Brodie's submissions without qualification, elaboration or addition.

[23] At the outset of his submissions, Mr Brodie summarised the topics which he would cover under five headings:

(1) The Crown had purported to indict the dissolved firm. None of the former partners ~~were~~ was indicted.

(2) On dissolution of a firm, the firm (and its separate legal persona) ceases to exist.

(3) If, contrary to that submission, the firm had some continuing existence after dissolution, it was for the limited purpose of winding up. Liability to prosecution for crime does not fall within the scope of winding up. The limited continued existence for which the Crown contended therefore was of no avail as a basis for indicting the dissolved firm.

(4) Thus, on either view of the question of the dissolved firm's continued existence, there was no basis for prosecution of the dissolved firm.

(5) In the circumstances, recourse to the nobile officium of the court was necessary to afford the petitioners a remedy, and the petitions were therefore competent.

[24] Mr Brodie's first topic required little, if any, elaboration. Although the form of citation used by the respondent in serving the indictment led to some apprehension on the petitioners' part that they were being treated as if they were accused persons, it is evident from the form of the indictment that that is not so. Although it is narrated that the petitioners are the "whole surviving [sic] partners" of the dissolved firm, they are not named as accused, and the charges are not laid against them. The matter is put beyond doubt by the terms of the respondent's Answers referred to in paragraph [12] above. It was not suggested in argument before us that the petitioners were indicted. The respondent's submissions proceeded on the basis that the sole accused in charges (1) to (17) is the dissolved firm.

[25] The major proposition on which the petitioners relied, namely that on dissolution a firm ceases to exist, and ceases to be a legal person, was elaborated upon in the second topic of Mr Brodie's submissions. He began with reference to sections 1 and 4 of the 1890 Act. In terms of section 1(1), the partnership is the relationship which subsists between or among persons carrying on business in common with a view of (or to) profit. In terms of section 4(1), the firm is the collective term for the partners as a body. In terms of section 4(2), the body of partners, so collectively described, is in Scots law given a legal personality distinct from those of the individual partners. Mr Brodie thus sought to preserve, in his submissions, the distinction that the term "partnership" laid emphasis on the relationship of the partners inter se, whereas the term "firm" laid emphasis on the collective body of partners which has, in Scots law, a separate legal personality. Mr Brodie acknowledged that the distinction was not uniformly maintained in ordinary usage, but relied on it for the sake of clarity in his own submissions.

[26] Mr Brodie went on to emphasise the contrast between sections 5 and 38 of the 1890 Act. Section 5 defines the power of a partner to bind the firm and his partners. Section 38 defines the limited powers of the partners after dissolution of the firm. If, contrary to his submissions, the firm has a continued existence after dissolution, there would be no need, he suggested, for section 38, because the partners' powers under section 5 to bind the firm would continue to exist. It was because the firm ceased to exist as a separate legal person on dissolution that the specific provision in section 38 giving the partners of the dissolved firm certain limited continuing powers was necessary.

[27] The language of the 1890 Act, Mr Brodie pointed out, was the language of civil rights and obligations. There was no use of language appropriate to crime or criminal proceedings. That, he suggested, was scarcely surprising, since partnership was a vehicle of mercantile usage. In the nineteenth century, it was not thought that a partnership could be prosecuted as such (Clark on Partnership, Vol. 1, 591). For an illuminating discussion of the relationship between the 1890 Act and the antecedent common law, Mr Brodie referred to the opinion of Lord Reed in Duncan v MFV Marigold PD145, 2006 SLT 975 at paragraphs 24 to 27.

[28] In making his submissions on the effect of dissolution of a firm, Mr Brodie turned first to Inland Revenue v Graham's Trustees 1971 SC (HL) 1. The issue in that case related to the valuation of a farm. That turned in part on estate duty legislation and in part on whether, on the death of a partner, the surviving partners were entitled to take up the firm's secure agricultural tenancy. Mr Brodie first cited the following observations made (at page 4) by Lord Hunter in the Lands Valuation Appeal Court:

"Considerable argument was presented to us on the question whether, after dissolution of a partnership by the death of a partner, the firm has any continued existence. In the argument presented on behalf of the respondents a good deal was made, in this connection, of passages from the institutional writers and from textbooks, which were said to suggest that, despite dissolution by the death of a partner, the firm as a legal persona continues to exist ... The matter depends largely on the particular choice of language and, in a sense, the dissolved firm might be said to continue in existence in such circumstances, although only for certain limited purposes, in order that it may be wound up and the assets distributed in accordance with the law. Possibly a more accurate statement may be that the surviving partners of the firm have, in such circumstances, the rights and powers necessary to enable them to wind up the affairs of the dissolved firm and distribute its assets ... Such rights and powers may, in appropriate cases, include the completion of depending contracts. In my opinion, the foregoing view of the law accords with the terms of section 38 of the Partnership Act 1890 and avoids the logical difficulty of asserting that the partnership continues in existence after it has been dissolved by the death of a partner."

Reference was also made to Lord Fraser, p 11. Those observations were relevant, Mr Brodie submitted, in the context of any dissolution, not only one resulting from the death of a partner. In the House of Lords, Lord Reid said (at page 19):

"There is no doubt that in Scotland a partnership or firm is and always has been a legal persona distinct from the partners ...".

Having rejected arguments based on the terms of the particular contract of co-partnery (a) that there was agreement that the partnership should continue notwithstanding the death of a partner, and (b) that the lease was a contract with the "house", Lord Reid went on (at page 20) to say:

"So, in my opinion, it must be held that this contract of co-partnership came to an end on the death of Mr Graham. All that remained was to wind up its affairs. It follows that thereafter there was no tenant, because the farm had been let to the partnership and to no one else."

His Lordship then considered section 38, and said (at page 21):

"In my view ... the surviving partners have the right and duty to complete all unfinished operations necessary to fulfil contracts of the firm which were still in force when the firm was dissolved. Otherwise the position would be intolerable. ... In my opinion, section 38 does not make the surviving partners parties to the firm's contracts and so keep those contracts alive. That would involve a radical change in Scots law. But I see no difficulty in holding that this section does require unfinished operations to be completed under the conditions which would have applied if the contract had still existed."

His Lordship added that the surviving partners were entitled and bound to carry on the work of the farm at least to the end of the year current at the date of death, but added (at page 22):

"In order to do this the surviving partners had to occupy the farm. But they would not thereby become tenants under any lease. The lease had gone, and they would be in occupation merely for the purpose of winding up the firm's affairs, as required by section 38."

Mr Brodie referred also to the speeches of Lord Guest at 23 to 25, and Lord Upjohn at 26 ("upon the death of R. F. Graham the lease came to an end, because it was a lease to a legal person who had ceased to exist") and 37.

[29] Mr Brodie then referred to Dickson v The National Bank of Scotland Limited 1917 SC (HL) 50, per Lord Finlay LC at 52, to Duncan v MFV Marigold per Lord Reed at paragraphs 18, 30, 31 34 and 37 et seq., and to Lujo Properties Limited v Green 1997 SLT 225 per Lord Penrose at 233L, 234A and J, 236G and 237F.

[30] From Graham's Trustees and those other cases Mr Brodie drew five propositions, namely (1) that a firm has separate legal personality; (2) that on dissolution of the firm that separate legal personality ceases to exist; (3) that on dissolution, the affairs of the firm require to be wound up by the partners; (4) that prior to dissolution the partners' powers to bind the firm are to be found in section 5 of the 1890 Act; and (5) that following dissolution those powers are continued by virtue of section 38, but only in so far as is necessary to wind up the affairs of the partnership.

[31] Mr Brodie recognised that for the contrary view - that a dissolved firm had continuing existence as a separate legal persona - the respondent relied on passages in Clark on Partnership and Bell's Commentaries and on the case of Gordon v Douglas, Heron & Co (1795) 3 Paton's App 428, and therefore turned his attention to those authorities. In Clark on Partnership, Vol. 2, 672 the view is expressed that:

"When a partnership is brought to a termination, it still continues to subsist for the purpose of winding up; and until this has been accomplished, the partnership relation cannot be said to have entirely ceased. In the absence of special agreement to the contrary, the former partners have the right and power of winding up. ...

But the partnership, and with it the agency of the former partners to bind their fellows, at once ceases as to all future contracts; it subsists only for the purposes of winding up."

That passage, Mr Brodie submitted, was concerned with the continuation of the relationship between the partners for the limited purpose of winding up. It did not vouch the continued existence after dissolution of the firm as a separate persona. A similar construction should be put upon the passage in Bell's Commentaries at 527 (the page references given in this Opinion are to the 1990 reprint of the seventh edition) where it was said that: "Partnership subsists after dissolution for the purpose of winding up the concern". In Gordon v Douglas, Heron & Co (which is cited by Clark and by Bell) the Lord Ordinary is recorded as having pronounced an interlocutor in the following terms:

"Finds that every copartnery must, from its nature, subsist after it has been dissolved, or the term for which it was entered into expired, to the effect of winding up its affairs, although there were no proviso in the contract constituting it for that purpose: Finds, that the contract in question does, in the 15^th Article, contain a special proviso for that purpose, which has been followed out, by naming persons as therein directed: ... On all, and each of these grounds, repels the defender's objection to the title of the pursuers to insist in this action."

The report indicates that on appeal in the House of Lords it was ordered and adjudged that "the interlocutors be affirmed". Some doubt on that latter point is introduced by the fact that in the Appeal Papers relating to the case there appears a manuscript version of the order of the House of Lords which omits reference to the interlocutors being affirmed. That aside, Mr Brodie submitted, first, that the case was concerned only with title to sue, and secondly, that the terms of the Lord Ordinary's second finding rendered the more general observation in his first finding obiter. In any event, there was actually no dissolution of Douglas, Heron & Co. That was evident from the report of the related case of Douglas, Heron & Co v Hair (1778) M 14605. In that report the terms of the resolution passed by the partners were set out: "That, from and after that date, the Company shall give over the business of banking in all its branches"; and a committee was appointed for winding up of their affairs, with "ample powers". At page 14606 it is reported that the Court were of opinion: "That the Company was not dissolved by the resolution August 1773, and that the propriety and necessity of the measure were sufficiently ascertained by the situation of their affairs." In all these circumstances, Mr Brodie submitted, Gordon v Douglas, Heron & Co, despite its subsequent citation, could not be treated as good authority for the proposition that a firm continues to subsist as a separate legal persona after dissolution. Later in his submissions Mr Brodie referred to Buchanan v West of Scotland Malleable Iron Co (1855) 17 D 461. It contained in the opinion of Lord Curriehill (at 474) a strong assertion of the continued subsistence of the separate persona after dissolution. His Lordship said:

"I am of opinion that, according to the law of Scotland, a company, although dissolved in any of the usual modes, subsists to the effect of winding up its affairs as a separate person in law. ... The Company itself continues to be a separate persona in law".

Mr Brodie pointed out, however, that that observation was obiter, because the resolution which the company had passed expressly provided for its continued subsistence for the purpose of winding up. It was, moreover, a joint stock company rather than a simple partnership. The case thus did not support a general proposition that the personality of a firm continues to subsist after dissolution. Mr Brodie also referred to Grant v Chalmers (1771) M 14581, Paul v Taylor (1826) 4 S 572 and Butchart v Dresser (1853) De G, M & G 542 per Turner LJ, but submitted that they added no support for the respondent's contention. In particular, Turner LJ's observations must inevitably be regarded as referring only to the continuing powers of the partners for the purpose of winding up, since no question of the continuing subsistence of a separate persona could arise in English law.

[32] Mr Brodie submitted that, on the contrary, there were cases which demonstrated that in the nineteenth century it was recognised that upon dissolution a firm ceased to exist as a separate persona. He referred first to Snodgrass v Hair (1848) 8 D 390. In that case it was held that one of the former partners of a dissolved firm had no power, after dissolution, to grant a bill in name of the firm for an unconstituted debt alleged to be due by the firm. Lord Medwyn said (at 397-398):

"After the dissolution of a company, it is quite true that it subsists to a certain effect, and that the partners, and more especially the partner who is appointed to wind up the concern, may use the firm in gathering in the effects and discharging the obligations of the company ... [His Lordship then set out a number of examples, and continued.] Now, all such acts fall under the character of acts in the necessary administrative powers for winding up the concern. But I think such powers go no further, and they do not extend to the effect of constituting a debt by granting a bill for it, thus giving the creditor of the dissolved company rights and privileges which he had not acquired during the subsistence of the company ... I can find no authority for saying that the former partner of an expired or dissolved company has this power of binding his copartners, by using the company firm after the company no longer exists" (emphases added).

In Campbell of Shawfield v The Calder Iron Co 11 December 1805, cited in Bell's Commentaries at 78, it was held that an un-assignable mineral lease in favour of a partnership came to an end when the partnership was dissolved through bankruptcy; the note in Bell puts the matter succinctly: "here the company, the tenant, is gone". In Hoey v MacEwan and Auld (1867) 5 M 814, the pursuer was a clerk employed by a firm on the basis of remuneration which included a share of profits. On dissolution of the firm by the death of a partner, the contract was held to be at an end. Lord President Inglis said (at 817):

"The only contracting party with Hoey was the firm, and when it was dissolved by the death of MacEwan the contracting party ceased to exist. ... This seems a purely personal contract, and one that cannot exist after the death of the employer; or, what is the same thing, the dissolution of the partnership by the death of one of the partners."

In Walker v McKnights (1886) 13 R 599 it was held that the sequestration of the tenant firm brought an end to a lease which excluded assignees. Lord President Inglis said (at 602):

"... it is a fundamental rule in the law of partnership that when a company is sequestrated it is thereby ipso facto dissolved; and if a company which is a tenant is a dissolved company, it no longer exists, except for the purpose of the partners who may be left winding up the business. ... There is no persona to represent the tenant at all."

In Collins v Young (1853) 15 D (HL) 35, which was cited by Lord Hunter in Graham's Trustees in support of his preferred view of the effect of dissolution, the following observation of Lord Cockburn was quoted with approval by Lord Cranworth LC:

"When a partner dies, a right to wind up the partnership concerns is by law vested in the surviving partners."

In Muir v Collett (1862) 24 D 1118, following the dissolution of a firm that had carried on business in Bombay, one of the partners, who was in Scotland, was sued for a debt of the firm contracted in Scotland. The defender pleaded "all parties not called". In argument the pursuers pointed out that, after dissolution, "There was ... no company to call." Lord Justice Clerk Inglis acknowledged (at 1122) that "where there exists a separate persona known as a company, with a separate estate, it would be in the highest degree inequitable to proceed against a single individual". At 1124, his Lordship concluded:

"When a company has been dissolved, the partners are put in the ordinary position of correi debendi. If you sue one of them for a company debt, you are bound to call all the others if you can. You are not bound to do so if it is impossible."

That, Mr Brodie submitted, illustrated that on dissolution the separate persona of the firm was lost. In Nicoll v Reid (1877) 5 R 137 a firm was dissolved by agreement. Thereafter, one of the partners died. The surviving partner sued in his own name for a firm debt. The defender challenged his title to sue "otherwise than in name of the firm (which still subsists for the purpose of winding up)". That plea was repelled. It was submitted that if the firm continued in existence, it would then be the firm that undertook the winding up. Were the Crown's argument correct, namely that the firm continued after dissolution, that would produce the uncomfortable result of the continuance of the firm after all but one of the partners had died.

[33] Mr Brodie then turned to the third topic of his submissions. If, contrary to his primary submission, a firm continues to have some form of existence after dissolution, he submitted that that continued existence (a) is for the purpose of winding up only, and (b) does not lay the dissolved firm open to criminal prosecution for an offence allegedly committed by the firm before dissolution.

[34] The limitation of the partners' post-dissolution rights and obligations to winding up, and the scope of what is understood by "winding up", are illustrated in a number of authorities. Mr Brodie referred again to Clark on Partnership at 672-673:

"When a partnership is brought to a termination, it still continues to subsist for the purposes of winding up; and until this has been accomplished, the partnership relation cannot be said to have entirely ceased."

That passage, Mr Brodie submitted, was concerned with the post-dissolution rights and obligations of the former partners. He did not accept that the "partnership relation" continued; the post-dissolution rights and obligations of the partners were not part of that relation, but were a legal consequence of the cessation of that relation. If, however, it was right to say that the partnership relation continued to subsist after dissolution, it was clear that it did so only for the purposes of winding up. In Bell's Commentaries the matter is put thus (at 533):

"When a partnership expires, whether by death, or by lapse of time, or by bankruptcy, the partnership is considered in one sense as determined, but in a sense also as continued, that is, continued till all the affairs are settled. After this no act can be effectually done, or contract entered into, in the name of the firm as in partnership, but every act of administration which is necessary for winding up the concern may effectually be done. See above, page 527."

In the passage from his opinion in Snodgrass v Hair quoted in part in paragraph 23 above, Lord Medwyn said (at 397):

"... the partners, and more especially the partner who is appointed to wind up the concern, may use the firm in gathering in the effects and discharging the obligations of the company; he may receive payment, and grant a discharge in name of the company; he may draw a bill upon a debtor, and indorse it; nay, he may pay a debt due by the company funds in his hands, and these funds may be the produce of such bills, or even the bills themselves, provided always the debts paid be just debts; and he will be liable to his partners if he act improperly, and admit debt as just against the company which are not so. Now all such acts fall under the character of acts in the necessary administrative powers for winding up the concern. But I thinks such powers go no further ...".

(See also Lord Cockburn at 399).

[35] The criminal prosecution of the dissolved firm in respect of acts or omissions allegedly committed before dissolution, and the defence of the dissolved firm against such prosecution, does not, Mr Brodie submitted, fall within the scope of the winding up of the firm's affairs. There is no support in the decided cases for the inclusion of criminal prosecution in such winding up. That is not surprising in light of the nineteenth century view reflected in the passage from Clark on Partnership at 591 cited in paragraph 27 above. It appeared that the respondent, in arguing for the inclusion of criminal prosecution in the process of winding up, sought to draw an analogy between civil and criminal liabilities. That analogy was ill-founded. Criminal liability was substantively different from civil liability. The common law has always been unwilling to regard criminal liability as anything other than personal to the wrongdoer. In Erskine's Institute IV, 4,103, it is said that:

"... it is a received rule, Crimina morte extinguuntur; crimes are extinguished by the death of the criminal."

In Keane v Adair 1941 JC 77 a person convicted on summary complaint brought an appeal by stated case to the High Court of Justiciary, but died before the appeal was heard. It was held that, as there was no passive representation in crime, his executors could not be sisted as parties to the appeal. Lord Justice General Normand said (at 79):

"I take the view that there is no basis whatever in our criminal law for passive representation or for the transmission in any shape of a criminal proceeding against the executors of the alleged criminal or offender. It is a maxim which has been recognised by Erskine in his Institute that crimes do not in any sense survive the death of the criminal: crimina morte extinguuntur; and I think that it is an unassailable principle. ... The root of the matter is that crime is personal to the individual criminal, and does not affect his representatives."

In 1997 it was made possible for the executor or other representative of a deceased convicted person to institute or continue any appeal that had been or could have been instituted by the deceased (1995 Act, section 303A, as inserted by the Crime and Punishment (Scotland) Act 1997), but Mr Brodie submitted that that limited statutory intervention demonstrated the soundness of the underlying common law rule.

[36] In general principle, Mr Brodie submitted, the criminal law rejects vicarious responsibility. In Gair v Brewster 1916 SC (J) 36 at 38, Lord Justice General Strathclyde said:

"I do not think anyone disputes that, by the criminal law of Scotland, a man is not held guilty of a crime unless he has committed that crime himself, and that the doctrine of vicarious responsibility has no place in our criminal jurisprudence."

The same appears to be the case in England. In Tesco Supermarkets Limited v Natrass [1972] AC 153, Lord Morris of Borth-y-Gest said:

"In general criminal liability only results from personal fault. We do not punish people in criminal courts for the misdeeds of others. The principle of respondeat superior is applicable in our civil courts, but not generally in our criminal courts."

For criminal responsibility to be transferred from one person to another, there requires to be very clear provision. The examples to be found of circumstances in which the issue was considered are all in cases of one legal person being succeeded by another. In Higson v Aberdeen City Council 1999 SCCR 708, a case dealing with the transfer of functions between a local authority and its successor, the court declined to hold that the statutory provisions effected transfer to the successor authority of criminal responsibility for the actions of the predecessor authority. Lord Prosser said (at 715C and E):

"One would expect civil rights, obligations and liabilities to be transferred in some way, rather than be terminated by the extinction of the former regional councils. But we are not persuaded that the very special case of criminal liability involves a similar expectation that some new body will stand in the shoes of the old body, inheriting its guilt.

... [We] cannot find in [the statutory provisions] any sufficient indication of either a direct intention to impose criminal responsibilities on new authorities for criminal conduct on the part of their predecessors, or the consciousness that such a responsibility might result from the provisions actually expressed."

In British Airways Board v Taylor [1976] 1 WLR 13 at 20 Viscount Dilhorne said:

"[Paragraph 2 of the Air Corporation (Dissolution) Order 1973] provides for the transfer of 'all property, rights and liabilities' of BOAC to the British Airways Board. That paragraph does not extend to criminal liabilities".

In R v Pennine NHS Trust [2004] 1 All ER 1324 at paragraph 22 Tuckey LJ said:

"Logically the first question is whether [the legislation under consideration] gives the Secretary of State power to transfer criminal liability from an old to a new trust. In considering this question one is bound to start by thinking that it is unlikely that this was intended. The criminal law renders the offender liable to a penalty. What purpose would be achieved by making someone else liable as if they were the offender? ... We do not say that it is impossible to transfer criminal liability but our view is that if that is the intention of the legislature it should say so clearly. This legislation does not."

These cases illustrated the general approach that, even where statutory provision is made for the succession of one body to the liabilities of another, such provision is not lightly to be interpreted as covering criminal liability. Even if, contrary to his submission, criminal liability could be equated with civil liability, that did not, Mr Brodie submitted, carry the respondent to the point of being entitled to indict the dissolved firm, since the liability had not been "constituted" against the firm prior to its dissolution.

[37] Mr Brodie recognised that, if on dissolution a firm ceased to exist as a separate person, and criminal liability could not be regarded as part of the winding up of a dissolved firm, the result would be that a firm facing the prospect of prosecution could be dissolved, and would thus avoid criminal liability. He submitted, however, that that was not as serious a consequence as it might at first seem. If the prospective prosecution was in respect of a common law crime and was well founded, the doctrine of identification meant that an individual natural person or persons must also have committed the crime (Transco plc v H. M. Advocate 2004 JC 29). Dissolution of the firm would not allow that person or persons to escape prosecution. In the case of statutory offences, there might be express statutory provision allowing individuals to be held criminally responsible, which responsibility would not be avoided by the dissolution of the firm. An example of that situation was to be found in section 36(1) of the 1974 Act.

[38] Turning to his fourth topic, Mr Brodie submitted that, whether he was right in his primary contention that on dissolution the firm ceased to exist as a separate legal persona or in his alternative contention that, if the persona subsisted after dissolution, it did so only for the purpose of winding up, the consequence was that the dissolved firm could not be made the subject of criminal prosecution.

[39] Mr Brodie submitted that statute required that a copy of an indictment be served on the accused, and that, if that requirement were not obtempered, the whole proceedings were incompetent (McAllister v H. M. Advocate 1985 SLT 399). The relevant current statutory provision was section 66(4) of the 1995 Act. If the firm, after dissolution, no longer existed as a separate legal person, there was no accused, and that requirement accordingly could not be complied with. Equally, if the firm subsisted only for the limited purpose of winding up, that did not include criminal prosecution, and again the statutory requirement could not be complied with. Citation of the former partners without calling them as accused, the procedure that had been adopted by the respondent, did not comply with section 66(4). Section 70(5) of the 1995 Act, which provided for proceedings in absence against a body corporate was of no assistance to the respondent. A partnership was not a body corporate. Douglas v Phoenix Motors 1970 SLT (Sh Ct) 57, which held otherwise, was wrongly decided. The point was illustrated by section 141(2)(b) of the 1995 Act which, in the context of summary proceedings, made provision for "a partnership, association or body corporate". Many other statutory examples of partnerships being treated separately from bodies corporate, thus demonstrating that the latter did not include the former, could be given.

[40] Finally, Mr Brodie turned to his fifth topic, the competency of the petitions to the nobile officium. `The accused, in respect of charges 1 to 17 of the indictment, was the dissolved firm. The petitioners, although named in the narrative of the indictment as the former partners of the firm, were not indicted as such. They were thus not parties to the indictment proceedings. That was expressly the Crown position. That being so, the petitioners were not entitled to present a preliminary plea to the competency of the indictment against the dissolved firm. That was the effect of sections 72(3) and 79(1) of the 1995 Act (BBC Petitioners 2000 SCCR 533, as noted by Lord Macfadyen at paragraph 10, page 543F-G). Nevertheless, the petitioners had a very real interest in opposing proceedings against the dissolved firm which they regarded as incompetent. If the prosecution of the dissolved firm proceeded to conviction and sentence, there was a real risk that any fine imposed on the dissolved firm would be enforceable against them. The petitioners had no other remedy by which to protect their interest. Recourse to the nobile officium was therefore competent (Express Newspapers plc, Petitioners 1999 JC 176 at 178-179; La Torre, Petitioner 2006 SCCR 671 at paragraphs 4 and 5).

The respondent's submissions

[41] At the outset of her submissions the Advocate depute indicated that she would present them in four chapters. The first would set out the background of the prosecution, and explain why it was in the form it was. Secondly, she would make reference to the statutory framework in which the issues raised by the petitions required to be considered. Thirdly, she would address the competency of the indictment. Lastly, she would address the competency of the petitions and the remedies sought by the petitioners. Reverting to the third chapter, two alternative bases for the contention that the indictment was competent would be advanced. The primary contention was that notwithstanding the dissolution of the firm, it continued and continues as a separate persona for certain purposes. After dissolution, the rights and obligations of the partners continue so far as necessary for the purpose of winding up the affairs of the firm. As part of the winding up, the partners could be involved in defending criminal proceedings in respect of an offence committed by the firm before dissolution. The alternative contention was that, if the firm was wholly extinguished on dissolution, that did not reflect practical reality. Dissolution does not discharge pre-existing liabilities of the firm. The dissolution of the firm could not be equated with the death of a natural person. The continued rights and obligations of the partners after dissolution (section 38 of the 1890 Act) meant that, criminal liability having been incurred before dissolution, it was proper to indict the dissolved firm. The only way to do so was to cite the former partners in a representative capacity, for the purpose of completing that aspect of the winding up of the affairs of the firm. Given the dissolution of the firm, the process of resolving the criminal liability for the pre-dissolution offences could not be achieved in any other way. That did not involve any transfer of criminal liability. The dissolved firm and the former partners were not prejudiced in any way.

[42] In explaining the background, the Advocate depute outlined the conduct of the business of Rosepark Care Home by the firm of which the petitioners were all latterly partners; the occurrence of the fire on 31 January 2004 and its consequences; the transfer of the business on 28 February 2005 to a limited company, Rosepark Care Home Limited, of which the petitioners were directors; the dissolution of the firm on 28 February 2005; and the conduct of the same business from the same premises with the same staff and the same residents from 1 March 2005 onwards.

[43] In terms of the present indictment, the firm faced charges under the 1974 Act and various other legislative provisions. All of the provisions founded upon ~~place~~ imposed duties on employers. Reference was made to sections 2 and 3, and 33(1) of the 1974 Act. By virtue of Schedule 1 to the Interpretation Act 1978 the reference in those provisions to a "person" included reference to a non-natural person, including a Scottish partnership. It was not now disputed that at the material time it was the firm that was the "person" who was the "employer" of those employed at the home, and that the firm was therefore the person who had allegedly committed the offences libelled (John Gray & Co v Mackenna (1899) 2 Adam 691 at 697).

[44] The Advocate depute referred to section 36(1) of the 1974 Act which provides:

"Where the commission by any person of an offence under any of the relevant statutory provisions 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 subsection whether or not proceedings are taken against the first-mentioned person."

That provision, she submitted, required the Crown to identify and libel particular acts or omissions on the part of the "other person" which led to the commission of the offence libelled. To proceed under that provision against the petitioners would require that degree of specification. The Advocate depute gave us to understand that, although there was sufficient evidence of corporate failings to justify proceedings against the dissolved firm, there was difficulty in identifying sufficient evidence to proceed against any individual petitioner under section 36(1). Section 37(1), which permits proceedings against any "director, manager, secretary or other similar officer of a body corporate" where an offence was committed "with the consent or connivance of" or was "attributable to any neglect on the part of" such a person, was of no relevance for present purposes, because it was accepted that a Scottish partnership was not a body corporate.

[45] Turning to the 1890 Act, the Advocate depute emphasised that it was only a partial codification, and that by virtue of section 46 the antecedent common law remained in force except in so far as it was inconsistent with the provisions of the Act. Both at common law and under section 4(2) of the 1890 Act, a Scottish firm is a legal person distinct from its partners. The Advocate depute did not accept the distinction which Mr Brodie sought to draw between the terms "partnership" and "firm". Their meaning, she submitted, was the same. The separate persona of a firm was qualified; a partner might be charged on a decree or diligence against the firm and had a right of relief against the firm and the other partners. The separate persona of a firm was therefore something different from that of a limited company. In England, since each partner is the employer, a partner would be liable for breach of the provisions of the 1974 Act libelled in the present case (Drake on Partnership, 108), so the situation that arises in the present case would not arise under English law. The Advocate depute went on to refer to sections 5 and 9 of the 1890 Act. Decree against the firm is sufficient to warrant diligence against a partner (Stair Memorial Encyclopaedia, Vol. 8, paragraph 128; Ewing v McClelland (1860) 22 D 1347). Reference was also made to the provisions regulating dissolution in sections 32 and 33.

[46] The Advocate depute pointed out that, if the petitioners' primary submission were correct, any criminal proceedings against a partnership could be defeated by dissolution of the firm before or during the prosecution. By virtue of section 38, however, following dissolution, certain rights and obligations of the partners remain. The language of section 38 supports the contention that the firm continues to subsist after dissolution. What continues after dissolution includes "the authority of each partner to bind the firm" (emphasis added). That language is inconsistent with there being no subsisting firm after dissolution. In Graham's Trustees, Lord Reid said (at 20-21) that section 38 should, if possible, be construed so as to reach a reasonable result. The section was designed to provide a solution to a practical problem. There was a real risk that an overly strict or conceptually pure construction would fail to achieve that result. As Lord Penrose suggested in Lujo Properties Ltd v Green at 236H, the rationalisation of the continuing rights and obligations is of less significance than the fundamental recognition of the fact that they continue.

[47] The Advocate depute reiterated that the 1890 Act is only a partial codification (Joint Report of the Law Commission and the Scottish Law Commission on Partnership Law, paragraph 13.33; Prime & Scanlan, The Law of Partnership, page 1; Miller, The Law of Partnership in Scotland, second edition, pages 1-2). Since the common law continued to play a part, therefore, it was relevant to note an observation made by Lord Nimmo Smith in paragraph 2 of his opinion in Lord Advocate's Reference No. 1 of 2001 2002 SCCR 435 at 461:

"Ours is ... a 'live system of law' ..., and it lies within the power of this court, as custodians of the common law, to review it, and to correct the way in which it is stated, when it is necessary to do so in order to take account of developments in the law and to meet the needs of the community."

Reference was also made to Transco plc v H. M. Advocate 2004 SCCR 1, per Lord Hamilton at paragraphs 46 and 56.

[48] The Advocate depute submitted that whether a firm could be prosecuted was regulated by the common law. Sections 70 (proceedings against bodies corporate) and 143 (summary prosecution of inter alia partnerships) of the 1995 Act were merely procedural. At common law, "where a firm or company may be guilty of ... an offence, it is sufficient to cite the firm or company as the offender" (City and Suburban Dairies v Mackenna 1918 JC 105 at 110). Reference was also made to Mackenzie, The Laws and Customs of Scotland in Matters Criminal (1678), pages 19 to 20, and Miles v Findlay & Co (1830) 9 S 19. In ~~Lindlay~~Lindley, The Partnership Act 1890, (1891) at page 25 the view was expressed that "A firm can neither prosecute nor be prosecuted socio nomine in a criminal or penal action. The proceedings must be by or against the individual partners". The same view was repeated in ~~Lindlay~~Lindley, Law of Partnership, sixth edition, in the "Notes on Scotch Law" by J. Campbell Lorimer at 780. Reference was made to Lord Advocate v Thomson and Hutcheson 1897 SLT 217 and (on appeal) 315, which concerned the liability of partners in civil proceedings for recovery of penalties under the Stamp Acts. What these references bore out was that the source of the power to prosecute a non-natural person was to be found in the common law, and that it was wrong to suggest that around the time of the 1890 Act the question of criminal liability of a partnership was not in contemplation.

[49] Turning to the issue of the effect of dissolution on a firm, the Advocate depute submitted that the correct view was that the firm as a separate entity continues in existence with its own distinct rights and obligations despite dissolution. It was not just the case that what survived was the relationship between the surviving partners to regulate the winding-up of the firm. In support of that proposition, she placed considerable weight on Dickson v National Bank of Scotland 1917 SC (HL) 50. She referred in particular to the following passage in the speech of Lord Finlay LC:

"Section 38 of the Partnership Act 1890 really embodied the old law relating to partnership derived originally from the Roman law, and it is this - that for certain purposes a partnership continues notwithstanding dissolution."

That observation was neither overruled by nor disapproved in Graham's Trustees. Numerous similar formulations of the position were to be found. In Bell's Commentaries at 527 it is said that:

"Partnership subsists after dissolution for the purpose of winding up the concern.

1. The partnership is dissolved in so far as the power of contracting new debts is concerned; but continued to the effect of levying the debts, paying the engagements of the company, and calling on the partners to answer the demands";

and at page 528 that:

"The question of chief importance relative to the Dissolution of Partnership arises with third parties; for there may be a complete dissolution as between the partners, and yet they may all continue responsible to the public."

At page 533, under the heading "Powers of Partners after Dissolution", Bell states:

And at p.535 it is stated:-

"... until the final settlement of the partnership affairs and payment of joint debts and distribution of joint property it cannot be said that the partnership is determined."

[50] The proposition that partnership continues after dissolution was supported by Gordon v Douglas, Heron & Co. The decision was referred to in the Appendix by Lorimer to the 6^th Edition of ~~Lindlay~~ Lindley at page 805. Lorimer also referred to Bell's Commentaries. In his Opinion in Duncan v MFV Marigold, Lord Reed appeared to detect in Inland Revenue v Graham's Trustees a different approach, but Dickson v National Bank of Scotland was not dis-approved. Those cases were referred to in Lujo Properties Ltd v Green 1997 SLT 225 and at page 236 Lord Penrose said:

"...the rationalisation of the continuing rights and obligations appears to me to be of much less significance than the fundamental recognition of the fact that those rights and obligations continue".

[51] Turning to Inland Revenue v Graham's Trustees, the Advocate depute stressed that the decision in that case did not overrule or question what had been said in Dickson v National Bank of Scotland.. Indeed there was no real judicial discussion of Dickson. The case was furthermore concerned with a lease which did not vest in the surviving partners. A new contract of lease would be required, which would not fall within s.section 38 of the 1890 Act. It was thus distinguishable from Dickson since it was essentially about leases, and it might be possible to say that for the purposes of a lease the persona had ceased to exist. That was the approach of the Court, reflected in the speeches of Lord Guest, p.page 24 and Lord Upjohn, p.page 27. The Advocate depute also referred to the Opinion of the Lord Justice Clerk in Dickson v National Bank of Scotland 1916 SC 589, which had received endorsement in the speeches in the House of Lords. While at page 594 the Lord Justice Clerk observed of section 38 of the 1890 Act that it was "noticeable that the statute does not say that the partnership is to continue" he later, at page 595, stated the effect of the statute to be that the partners "still remained after dissolution invested with an authority entitling them to use the firm's signature and that the partnership continued for anything that was required to wind up its affairs or to complete any transaction begun and not then finished". Reference was also made to Snodgrass v Hair; Goodwin v Industrial and General Trust (1890) 18R 193; Butchart v Dresser; and to the discussion of section 38 of the Act in Lindley 8^th Edition (1912) at pages 263-4.

[52] The Advocate depute submitted that there was accordingly authority for a partnership continuing after dissolution for the purpose of winding up its affairs. This meant that the separate juristic or legal person of the partnership continued to exist for those purposes. Further, s.section 38 of the 1890 Act provided for the partners' having continued authority "to bind the firm". For the term "the firm" one had to refer back to s.section 1(1) and s.section 4(1), which defined "the firm" in terms of separate personality. The logic was that the persona continued to exist for some purposes, and logic therefore required that it continued to exist for the purposes of dealing with a criminal prosecution arising out of what had happened prior to dissolution. In the same way as that a dissolution did not remove or destroy existing civil liabilities, dissolution should not remove or destroy existing criminal liabilities. During winding up the partners ~~are~~ were able to defend civil proceedings brought against them. They would be able to defend criminal proceedings against them. It was arguably more important that such pre-existing criminal responsibility should be accounted for following dissolution of the firm.

[53] The Advocate depute went on to submit that the dissolution of a partnership was not to be equiparated with the death of a natural person. The principle is was that criminal liability is personal to the individual and does not survive his death: Keane v Adair 1941 JC 77. There were practical reasons for not applying the same rules to the dissolution of a partnership. Erskine iv 4,103 explained the basis of the rule crimina morte extinguuntur as being that a dead person can make no defence and was beyond mortal punishment and that to punish his innocent children or heirs would be unjust and contrary to the principle culpa tenet suos auctores. Reference was also made to Kaimes Historical Tracts, 4^th Edition (1792) at page 331. None of those reasons applied in the case of the dissolution of a partnership. By contrast, said the Advocate depute, dissolution of the firm did not destroy any source of defence evidence; the partners of the dissolved firm ~~are~~ were acquainted with the history of matters and the same means of justification as they would have had, had the firm not been dissolved. The only punishment which could be imposed on a partnership was a fine and a fine imposed on a subsisting partnership would ultimately be recoverable from the partners. The equities applying against transferring criminal responsibility to children or heirs were not relevant in considering whether former partners should remain liable for criminal acts.

[54] Moreover the argument for the petitioners implied that the prosecution of a partnership could be brought to a halt at any moment by a decision of the partners to dissolve the partnership. While it might be contended that a decision to dissolve taken for the purpose of ~~the~~ frustrating the prosecution might amount to an attempt to pervert the course of justice, that was not a satisfactory result. Policy issues favoured developing the common law theory of a continuing legal personality to enable the prosecution of a dissolved partnership. In the case of a company incorporated under the Companies Acts, a resolution to wind up the company did not effect immediate loss of separate ~~justice~~ juristic personality, which only occurred once its affairs were finally wound up. Moreover, the Lord Advocate could oppose the winding up of an incorporated company and, if need be, seek in its restoration to the Register of Companies for the purpose of prosecuting it. Reference was made to In re Townreach [1995] Ch. 28.

[55] The Advocate depute also advanced what she described as an alternative limb to this chapter of her argument. She submitted that even if it were the case that the separate legal persona came to an end on dissolution, the fact of dissolution could not affect the liabilities of the firm. However one might rationalise the post-dissolution situation, the civil liabilities incurred by the partnership remained and could be enforced against the former partners. Where criminal liability had been incurred prior to dissolution, that liability ought similarly to continue. So, in terms of section 38 of the Act, the partners continued to be responsible for that criminal liability. That an indictment had not been served, or criminal liability established, prior to dissolution ~~could~~ should not be of significance. The indictment had been framed to avoid transfer of criminal liability to the partners as individuals. The former firm was indicted and an appropriate way to convene the former firm was to convene the former partners in the indictment. The Advocate depute then referred to Plotzker v Lucas 1907 SC 315 per the Lord President, 318; McNaught v Milligan (1885) 13R 366 per Lord Sands, 369 and Neilson v Wilson (1890) 17R 608. The Advocate depute turned next to Aitkenhead and Another v Fraser 2006 SCCR 411, which was concerned with the proper method of convening trustees in a summary prosecution. She pointed out that in paragraph 9 of its Opinion the Court indicated that the method of convening a party in civil proceedings may be relevant in criminal proceedings and, having further examined the decision, she suggested that on the approach in that case it might be open to the Crown to indict the former partners as such. She then put up to the Court a manuscript draft of a possible version of the opening terms of such an indictment.

[56] In regard to the competency of the petitions, the Advocate depute stated that the Crown accepted that the petitioners had an interest and had raised an important matter. If the petitioners' argument on the merits were sound, the Crown did not challenge the competency of the petitions, though it would not be appropriate to grant all sub-heads of the prayer.

Response for petitioners

[57] In his response to what had been said by the Advocate depute, Mr Brodie stressed at the outset that his ~~clients'~~ client's petition addressed only the competency of this indictment. He was not currently in a position to consider, nor was it appropriate to consider, possible alternative draft forms of indictment. The possibility of there being alternative forms of indictment in the case of a dissolved partnership was not one which he sought to refute. However it was for the Crown to frame the indictment and it was not in the petitioners' interest to set up an alternative in these proceedings.

[58] Turning to the substance of matters, counsel observed that the way in which various phrases had been used in the authorities sometimes obscured the underlying principles of law. Noting that - as pointed out by Lord Reed in Duncan v MFV Marigold, para.26 - the 1890 Act was not drafted using conventional techniques of parliamentary draftsmanship, Mr Brodie pointed out that section 1 of the Act defined "partnership" as the "relationship" between persons carrying on business with the view of profit. Section 4(1) then used the word "firm" as a collective term for those in such a relationship; and section 4(2) told one that in Scotland the relationship constituted a juristic person. On dissolution of the relationship a wholly different situation arose since there was no longer the relationship of persons carrying on business. Accordingly the purpose of section 38 was to allow some of the powers of the partners to continue so that the affairs can be wound up and third parties enabled to know that they can get a good discharge. It was however neither necessary nor appropriate to read section 38 as meaning that the juristic personality continued. The phrase "to bind the firm" in section 38 simply meant that, as part of the winding up, a single partner can bind the collectivity.

[59] For the reasons given in the course of his principal submission, Mr Brodie reiterated that Gordon v Douglas, Heron & Co was not authority for the proposition that after dissolution the separate juristic persona of the partnership continued in existence. In fact, in that case there had been no dissolution of the partnership. Furthermore to say that following dissolution a partnership continued for the purposes of winding up did not mean, and was not to be equiparated with, continuance of the juristic personality. Clark on Partnership, page 551, contained a clear statement to contrary effect. Dickson v National Bank of Scotland was not about persona but about the scope of the partner's authority after dissolution and whether uplifting the funds consigned in that case was truly part of the winding up of the partnership. In that respect, reference should be made to the Opinion of the Lord Justice Clerk (1916 AC 589, 584) with which their Lordships generally concurred. Because Dickson v National Bank of Scotland was not about persona it did not need to be discussed or distinguished in any way in Graham's Trustees.

[60] Insofar as it is was said that partnership continues after dissolution for limited purposes, those limited purposes are the winding up of the affairs of the partnership or the completion of transactions already begun. Winding up is was the gathering in of assets and the paying of existing liabilities. Criminal prosecution was not a part of winding up. Criminal responsibility did not sit happily with civil liabilities and their treatment. But in any event, drawing on the analogy in civil proceedings, a debt had to be constituted against all the former partners. The alternative argument which the Advocate depute had advanced implied the necessity of calling the partners in their representative capacity. That is was something which the indictment under consideration certainly did not do.

[61] Finally, if there were practical problems about prosecuting in cases where a partnership had been dissolved, the solution was one for the legislature. Mr Brodie observed that it appeared that, in so far as a statute might provide for the prosecution of a partnership in England, it was accepted that a dissolved partnership could not be prosecuted - see R v Wakefield [2004] EWCA Crim 2278, para.14. The legislation involved in that case - the Trademarks Act 1994 - made specific provision for the criminal responsibility of partners additionally or alternatively to the responsibility of the partnership. In the present case there was available to the Crown section 36 of the Health and Safety at Work Act 1974 which provided for individual criminal responsibility additional to or independent of the criminal responsibility of the employer. Moreover, health and safety legislation had been around for a long time. One was accordingly not faced with recent radical societal change. Ultimately if the law were unsatisfactory the matter was something which should be addressed by Parliament.

Discussion

[62] As we noted in the opening paragraphs of this Opinion, under the terms of the indictment with which these three petitions are concerned, the only accused - apart from Balmer Care Homes Limited - is the dissolved firm of Rosepark Care Home (or Rosepark Nursing Home). In particular the petitioners are not parties to the indictment. Although in the course of her submission the Advocate depute touched on other possible forms in which an indictment might be drafted and tentatively ~~put~~ proffered up one manuscript version of a possible style, the issue for decision in these petitions is indeed whether the particular indictment to which these petitions are directed is a competent indictment, in view of the fact that the partnership which it seeks to indict is dissolved.

[63] It is of course unquestionable that in Scotland a partnership has its own separate legal personality independent of the partners. The longstanding common law rule to that effect is restated in section 4(2) of the Act. Whether that separate persona ceases to exist on the occurrence of an act or event dissolving the partnership is the principal issue dividing the parties to these petition proceedings.

[64] Although in Bank of England v Vagliano Brothers [1891] AC 107, Lord Herschell said (pp.144-5) as respects the approach to a codifying, or partially codifying, statute (in casu the Bills of Exchange Act 1882) that the proper course was, in the first instance, to examine the language of the statute for its natural meaning rather than start with the pre-existing law, he recognised that such an approach need not be universally adopted and that there would indeed be instances in which it would be appropriate to examine first the previous state of the law. In the present case, having regard to the nature of parties' submissions and the absence of any express provision in the Act respecting the duration of the separate legal personality of a Scottish partnership, we think that this is a case in which it is appropriate and convenient first to examine the authorities prior to the passing of the 1890 Act.

Authorities prior to the 1890 Act

[65] It is evident that most of these authorities do not address directly and expressly the consequences of dissolution on the juristic persona of a partnership. An exception is Clark on Partnership. On occasion the author does of course refer to a partnership subsisting after dissolution for the purposes of the winding up. Thus, for example, at page 672 he says:

"When a partnership is brought to a termination it still continues to subsist for the purposes of winding up; and until this has been accomplished, the partnership relation cannot be said to have entirely ceased".

In the footnote to this passage reference is made to Gordon v Douglas, Heron & Co. However at page 551 Clark says:

"The law of Scotland sees in an unincorporated association, both the quasi person of the society, and the persons of the individuals composing it. Now on dissolution the quasi person is lost, and nothing remains but the individual members who, as correi debendi, must all be brought into the field".

In our view, it is clear that Clark understood the separate personality to end with the dissolution and it appears to us that the references elsewhere in the work to partnership subsisting for the purposes of the winding up must be seen in the light of that understanding. In other words, to say that the partnership subsists for winding up purposes is not the same as saying that the separate juristic personality continues.

[66] The particular context in which Clark states that the juristic persona thus ceases to exist on dissolution is that of recovery of a partnership debt after dissolution, he having stated, immediately before this passage, the general rule as being that the action must be directed against all the surviving partners and the representatives of those deceased. That context is not without significance. One of the important practical consequences of the existence of the separate juristic persona is that, in the case of subsisting partnership, a creditor of the partnership cannot proceed directly against the partners, or any of them, but must first constitute the debt against the firm, and the partnership must have failed to pay, before a call may be made on the partner (cf. Bell's Commentaries¸ Book VII, Chapter 1, section IV). If it were the case that the separate personality continued notwithstanding the dissolution of the partnership one would expect the same rule to apply post-dissolution, there still being in existence the juristic person which is the party to the debt. However, it appears to us that the authorities are to contrary effect. Thus, in Muir v Collett the defender, who was only one of the partners, pled, in answer to the claim of the creditor of the partnership, that the creditor had failed to constitute the debt against the partnership, which had traded in India. Among the grounds upon which the Court rejected that plea was the fact that the partnership had been dissolved. At 1124 the Lord Justice Clerk said -

"When a company has been dissolved, the partners are put in the ordinary position of correi debendi. If you sue one of them for a company debt, you are bound to call the others if you can".

Lord Cowan (at 1124) said:

"I find a sufficient ground of judgment in the admitted fact that this company is dissolved, and has been non-existent for many years. The view I take of the case is shortly this, that when a creditor has to constitute and recover payment of a debt incurred by a company which has been dissolved, he is bound to call as parties all the partners of that company who are subject to the jurisdiction of this Court; but that, if he does so, he does all he can be required to do".

The need, after dissolution, for a creditor to proceed against all the partners individually is also stated by the Lord President (Hope) in Snodgrass v Hair at 396:

"The case was put of an action being brought against the company after dissolution and of Fraser therein acknowledging the debt. If the other partners were not called in that action, I apprehend no acknowledgement by Fraser called alone would support a charge on the decree, against the partner not called; for after dissolution, all the partners must be individually called".

[67] The existence of separate personality has a similar, but converse, result in the case of pursuit of partnership debtors. Prior to dissolution, since the debt is owed to the persona that is the partnership, any action must be at the instance of the partnership. Again, if that persona were to survive dissolution, one might logically expect the same rule to have applied after dissolution. But in Nicoll v Reid, in which a partner sued for a debt due to the dissolved partnership, a plea that the action had to be brought in the firm name was rejected and it was held that the pursuer was entitled to sue in his own name as the sole surviving partner. In his opinion the Lord President (Inglis), having stated that the pursuer as surviving partner had the sole power of winding up, and within that power the power of suing for debts due to the company, went on to say;

"The only remaining question is whether in exercising that power, he must as a matter of form use the firm name? I know of no authority for that proposition".

Lord Deas said, 140:

"I know of no ground for holding it necessary that he should use the name of the dissolved firm as pursuers in this action. I do not say it would have done any harm to have done so, but the question is whether it is essential, and I am not prepared to say that it is".

[68] In our view, while the cases to which we have just referred do not talk expressly in terms of the extinction of legal personality on dissolution, they are entirely consistent with and properly explicable by an acceptance that dissolution of a partnership brings with it the ending of the separate juristic personality, and hence a cessation of the juridical consequences flowing from separate personality.

[69] A further manifestation, or consequence, of separate personality is the rule that in a lease to a partnership the tenant is the separate legal persona of the partnership. If it were the case that the separate persona survived dissolution, one would expect that even a non-assignable lease would survive dissolution. However, in Walker v McKnights the Court held that a non-assignable lease to a partnership was terminated on dissolution of the partnership by its estates being sequestrated on insolvency. The basis for so holding was clearly the extinction of the separate person. The Lord President (Inglis) said at 602:

"It is laid down by Mr Bell in his Commentaries [i 5^th ed.82, 7^th ed.78] that 'where a lease is granted to a company with an exclusion of sub-tenants and assignees, the bankruptcy of the company puts an end to the lease'; and he cites the case of Campbell v Calder Iron Co in support of the dictum. Now putting that case entirely out of view, in the first place, I think that his dictum is in itself irresistibly well-founded in principle, for it is a fundamental rule in the law of partnership that when a company is sequestrated it is thereby ipso facto dissolved; and if a company which is the tenant is a dissolved company, it no longer exists, except for the purposes of the partners who may be left winding up the business. How, then, can a company in such a position be a tenant which requires that the whole of the lease should possess capital, &c? There is no persona to represent the tenant at all, and therefore, if there had never been such a case as Campbell, my judgment would have been exactly the same".

[70] Contracts of employment are similarly contracts involving a continuing relationship dependent on the continuing existence of the two persons concerned. In Hoey v MacEwan an employee of a partnership, one of the two partners of which had died, brought proceedings founded on his contract with the partnership. The Lord President (Inglis) expressed himself thus at page 817:

"The only contracting party with Hoey was the firm, and when it was dissolved by the death of MacEwan the contracting party ceased to exist. The case was the same as if the contract had been with MacEwan as an individual, and his death had put an end to it".

Although the Lord President does not use the actual terminology of legal persona, it is in our view plain that he is proceeding on the basis that dissolution effects the extinction of the persona of the firm.

[71] Reliance was placed by the Advocate depute on Gordon v Douglas, Heron & Company, which was referred to by Bell (page 527) for the proposition that after dissolution partnership is "continued to the effect of levying the debts, paying the engagements of the company, and calling on the partners to answer the demands". The case was also referred to by Lorimer in his commentary on section 38 of the Act (see ~~Lindlay~~ Lindley 6^th Edition, page 805). The decision in Gordon v Douglas, Heron & Company is relatively briefly reported in 3 Paton 428 but we were provided from the appeal papers in the Advocates Library with copies of the respective cases lodged by the parties in the House of Lords which give a fuller understanding of the issues in the case. There is no record of any speeches having been delivered in the Lords. It may be observed at the outset that the company - Douglas, Heron & Company - which carried on a banking business was not what one might term an "ordinary" partnership but was in effect a joint stock company with numerous shareholders. It appears from the appeal papers that having sustained heavy losses, the shareholders in general meeting passed a resolution to cease carrying on business and to call on shareholders to contribute the further capital necessary to achieve solvency according to their respective shareholdings. A committee was appointed to conduct this operation and, in accordance with powers given to it, the committee in turn appointed a factor with full powers to get in the funds from the company's debtors and shareholders. As counsel for the petitioners pointed out, in the related case of Douglas Heron & Company v Hair, the Court held that the resolution in question - to "give over" banking - did not constitute dissolution. Gordon, a shareholder, declined to pay the levy on the shareholders and proceedings were brought against him by the Bank and the factor. The action was accordingly not one by a partnership against a third party debtor. It appears from the appeal print that while Gordon objected to the bringing of the action in the social name of the company, the basis of that objection was essentially that he was being sued by his co-partners, who should do so as such. Thus at page 6 of his case, having noted the proposition in the interlocutor appealed from that "every co-partnery must from its nature subsist after it has been dissolved, or the term expired to the effect of winding up its affairs"; the case for the appellant goes on to say of that proposition:

"...if it is thereby meant that the joint and separate Obligations of Partners to discharge Partnership Engagements to Strangers, and their implied Engagements to one another subsist, and may be enforced after the Partnership Business is given up, the Appellant never dreamed of disputing it; but that noways entrenches on the Proposition he maintains; namely that no given Number of the Partners can bring an Action against their Co-partners, in the Name and by assuming the Style or Firm of the late Co-partnership to compel those Co-partners to pay Money, either for discharging the partnership Debts, or for equalizing the Loss amongst the Partners".

We would add that the penultimate paragraph on page 5 of the respondent's case reflects that this is the nature of the objection taken. A further matter which must be noted is that the action was also brought by the factor appointed by the members of the company, and a contention for the respondent (see respondent's case page 8) was that the factor had in any event the authority of the other co-partners to pursue the claim against Gordon. A further complication which may be noted is that whereas the report in Paton states that the House of Lords affirmed the interlocutor of the Lord Ordinary in the Court of Session, the order of the House of Lords which is inscribed in the appeal papers, while otherwise essentially identical, does not contain that part of what is reported in Paton as being the affirmation of the Lord Ordinary's interlocutor.

[73] Having regard to these matters we do not consider that the decision in Gordon v Douglas, Heron & Company can be seen as authority for the proposition that the separate juristic personality of a partnership continues after dissolution. Nor, in the light of the decisions which we have earlier discussed, does it ever appear to have been regarded as establishing that particular proposition. We would observe, as already indicated, that Clark was well aware of Gordon v Douglas, Heron & Company but yet states (at p.551) that the separate personality of the partnership is lost on dissolution. It is of course in the nature of the institution of partnership, which may be brought to an end not only at the wish of a partner but also by events such as death or bankruptcy, the timing of which is not controlled by the partners, that rules must exist for winding up its affairs. To the extent that partnership law - and possibly the particular terms of a given contract of co-partnery - provide for that winding up it may be possible to talk, perhaps loosely, of partnership continuing or subsisting after dissolution. But that is not, to say that the separate juristic persona continues or subsists after dissolution; and in our view, when one looks for the indiciae of separate legal personality continuing after dissolution, the cases ante-dating the 1890 Act to which we were referred exhibit the absence of those indiciae and are entirely consistent with the statement by Clark that on dissolution the persona of the partnership is lost.

The 1890 Act

[74) Against that understanding of the common law, we turn to the 1890 Act.

[75] The submission of the Advocate depute respecting the construction of the Act was, put shortly, founded on the reference in section 38 to each partner having "authority to bind the firm". That reference, it was submitted, indicated that the legal personality must continue after dissolution (or at least was consistent with the contention of the Advocate depute that such was the position at common law) because section 44(2) defined the firm in Scotland as having legal personality. We think that there is force in Mr Brodie's submission that in view of the approach to legislative drafting adopted by Pollock, the author of the Act, one should not take what Mr Brodie termed a "conveyancer's" approach to construction of this statute. For our part we do not consider that the use of the phrase "authority to bind the firm" in section 38 carries the necessary implication that the separate persona continues notwithstanding dissolution. In our opinion the text can be read, as counsel for the petitioners submitted, as referring to the collectivity of persons formerly in the relationship which constituted partnership and we would add that, as a codifying statute, it should be interpreted consistently with the common law which it sought to codify. Further, as Mr Brodie also pointed out, if the firm's persona continued after dissolution, it is not easy to see why it was necessary to enact section 38 in addition to section 5 of the 1890 Act.

Authorities subsequent to the 1890 Act

[76] The case upon which the Advocate depute placed most reliance was Dickson v The National Bank of Scotland. She invoked in particular the passage in the speech of the Lord Chancellor, at 52, which is in these terms:

"Section 38 of the Partnership Act, 1890, really embodied the old law relating to partnership derived originally from the Roman law, and it is this - that for certain purposes a partnership continues notwithstanding dissolution. There is an interesting passage quoted from Paulus in the Digest by Sir Frederick Pollock in his edition of the Partnership Act, where it is pointed out that, although when one of a firm dies the survivors cannot undertake new transactions on behalf of the firm, they can complete what is left unfinished, and that distinction is really what animates this section 38 and law of which section 38 is the embodiment".

In relation to Paulus, the reference is identified by Lord Reed in his Opinion in Duncan v MFV Marigold PD145 ~~and~~ as being to Justinian's Digest III 5.21:

"Si vivo Titio negotia eius administrare coepi, intermittere mortuo eo non debeo: nova tamen inchoare necesse mihi non est, vetera explicare ac conservare necessarium est. Ut accidit cum alter ex socius mortuus est: nam quaecumque prioris negotii explicandi causa geruntur, nihilum refert, quo tempore consummentur, sed quo tempore inchoarentur"

("If I began to manage Titius's affairs during his lifetime, I ought not to leave off at his death. However, there is no necessity for me to enter into new transactions, though it is necessary to complete and look after old ones. It is the same as when one of two partners has died; for as regards any transactions to complete previous business, the issue is not when these are finished, but when they were begun").

We would merely observe that it is difficult to see in Paulus a support for the notion of continuing juristic personality. The other members of the Judicial Committee expressed approval of the Opinion of the Lord Justice Clerk in Dickson v National Bank of Scotland and, as respects that Opinion, the Advocate depute pointed particularly to the following passage at page 595:

"I think the effect of the statute [section 38] was that the partners of A, B and C still remained after dissolution invested with authority entitling them to use the firm's signature, and that the partnership continued for anything that was required to wind up its affairs or to complete any transaction begun and not then finished".

[77] The circumstances of Dickson v National Bank of Scotland were that trustees instructed their solicitors to consign certain of the trust funds with the Bank. A consignation receipt was given by the Bank, stating inter alia that the funds would be payable against the signature of the firm of solicitors. The firm of solicitors was subsequently dissolved and some time later a former partner uplifted the deposited funds, signing for them with the former firm's signature. He then embezzled the funds. The residuary beneficiary, having taken an assignation from the trustees of their interest, then sued the Bank on the basis that the Bank had paid the money to someone not entitled to it. The issues in the case were, or came to be, whether section 38 of the Act enabled the former partner to adhibit the firm's signature of the dissolved partnership and whether the uplifting of the consigned money formed part of the winding up of the dissolved partnership. The case was thus concerned only with the application of section 38 and it was not at all concerned with the juristic persona of a partnership or its duration. Accordingly we do not consider that the passages to which the Advocate depute referred are to be read as stating that the separate persona continues notwithstanding dissolution. It is also to be noted that at page 594 the Lord Justice Clerk said respecting section 38 of the statute:

"It is noticeable that the statute does not say that the partnership is to continue. What it does say is that the authority of the partner to bind the firm and the other rights and obligations of the partners are to continue - notwithstanding the dissolution - limited only by this, that what is done must be necessary, first, to wind up the affairs of the partnership, or, second, to complete transactions begun but unfinished at the time of the dissolution".

[78] On the other hand, Inland Revenue Commissioners v Graham's Trustees is, in our opinion, a case concerned with legal personality. The principal issue decided in the House of Lords was whether a non-transmissible agricultural lease to a partnership continued after the partnership was dissolved by the death of one of the partners. The House of Lords held that it did not continue because on dissolution the persona that was the tenant ceased to exist. Lord Reid, at page 20, put matters thus:

"So, in my opinion, it must be held that this contract of co-partnership came to an end on the death of Mr Graham. All that remained was to wind up its affairs. It must follow that thereafter there was no tenant, because the farm had been let to the co-partnership and to no one else. Where agricultural land was let to an individual, his heir was entitled to succeed him, and now the matter is regulated by the Agricultural ~~Homings~~ Holdings Act. But there is no provision anywhere for anyone being, so to speak, the heir of a partnership. The sudden end of a lease because there is no one left who can claim to be tenant is no novelty;...."

At page 23, Lord Guest states:

"By section 33(1) [of the Act], subject to any agreement between the partners to the contrary, a partnership is dissolved as regards all the parties by the death or bankruptcy of any partner. Accordingly the lease between the late Mr Graham and the partnership came to an end on his death unless it was continued or revived".

In his speech, Lord Upjohn said, at pages 25-26:

"By English law it is quite clear that a partnership is not a corporate body distinct from the members of the partnership. But by section 4(2) of the Partnership Act 1890 it is expressly provided that in Scotland a firm is a legal person distinct from the partners of whom it is composed. Secondly, unless the contrary is expressly provided - and there is no trace of any such provision in the lease of the farmland to the partnership by the deceased - a lease is not assignable. This, of course, is in marked distinction to the law of England on the subject. It seems to me, therefore, necessarily to follow that upon the death of R F Graham the lease came to an end, because it was a lease to a legal person which had ceased to exist".

[79] The Advocate depute sought to distinguish Graham's Trustees on the basis, as we understood, that it involved a non-assignable lease and that on that account the case involved some speciality and that it might be that the personality of the partnership was extinguished only to the limited extent of its ability to be a tenant. We do not consider that the case can be distinguished in that way. In our view, the importance of the decision for present purposes is that the issue was decided, and required to be decided, by reference to the separate juristic persona of the partnership which it was clearly held did not survive the dissolution.

Other matters

[80] As we have just mentioned, in the course of her submission respecting Graham's Trustees the Advocate depute appeared to suggest that dissolution might extinguish the personality of the partnership in a limited way confined to its ability to be a tenant. At other points in her wider submissions there was a similar suggestion that after the dissolution of a partnership some limited form of personality might exist. We do not consider that this suggestion has any validity. First, as respects Graham's Trustees, the speeches are clear in treating dissolution as the complete cessation of the persona of the partnership; any subsequent right to occupy the farm to complete cultivation was attributable only to the powers given to the former partners under section 38 of the Act. On a wider basis, we have great difficulty with the notion of varying or limited degrees of juristic personality. While it is no doubt possible for a person, whether natural or juristic, to have limitations on his or its powers of or capacities, the notion of some limited degree of personality is not readily understandable in juridical terms and, importantly, has no support in any of the authorities to which we were referred. In our view, in principle, there is either a person or there is not a person. Personality, whether natural or juristic, is not created or extinguished in slices or instalments.

[81] The suggestion that personality might exist for some purposes but not others underlay a further aspect of the submission for the Crown, namely that for what might shortly be termed policy reasons, the Court should hold that a dissolved partnership retained a limited separate persona for the purposes of criminal prosecution. While naturally acknowledging the existence of the policy reasons to which the Advocate depute referred, we ~~did~~ do not consider that the structures and principles of the law relating to the creation and extinction of legal personality can lightly be departed from on the simple ground of expediency so as to enable one to say that a person in all respects having died or ceased to exist, is yet deemed to be alive or ~~extent~~ extant as a person who can receive and accept service of an indictment and instruct entry of a plea and conduct a defence. The present ~~positions~~ petitions are in some ways an exemplification or reflexion of the fundamental juridical difficulty of this indictment, namely that it bears to accuse a person who does not exist.

[82] We are of course very conscious of the undesirability of prosecution of the commission by a partnership of a criminal offence being frustrated by the partnership's ability to dissolve itself, or by its susceptibility to dissolution by other events, particularly if by dissolution the partners are also to be exonerated. However, we would observe that, as was pointed out by counsel for the petitioners, matters are not as stark or extreme as might appear at first sight. In the case of most common law crimes and many statutory offences the individual partner responsible for the act or omission will be readily identifiable and can be prosecuted in his personal capacity. In the present case there is section 36 of the 1974 Act which creates individual responsibility for an offence committed by the employer. We appreciate that the evidential challenge facing the prosecutor in establishing individual responsibility under section 36 (and equivalent provisions in other health and safety or consumer protection legislation) may be different and possibly greater than that involved in establishing criminal responsibility on the part of the employer. But it will normally be capable of being met, particularly if the principles of art and part involvement are borne in mind. Finally, as the Advocate depute herself canvassed in her argument, there may be other forms in which an indictment may be brought against the partners of a dissolved partnership in their capacity as former partners. We have however, as already indicated, come to the view that it would not be appropriate to express any concluded opinion on other possible forms of indictment in the absence of an actual indictment with which it is proposed to proceed. As we have already stated, these petitions, and the argument, ~~had~~ have been directed at the particular indictment in which the purported accused is a dissolved partnership.

[83] For the reasons which we have indicated, we conclude that the dissolved partnership does not have any continuing legal personality following dissolution and accordingly we consider that the indictment to which the petitions are directed is incompetent.

[84] ~~We would add that, as~~As respects that part of the alternative branch of the Advocate depute's submission to the effect that even if the persona ceased on dissolution, the partners of the former firm yet retained responsibility for what she described as the criminal liabilities of the partnership in the same way as they had responsibility for its civil liabilities, we would add that her argument would on any view require an indictment directed against ~~them~~the partners of the former firm. It is however clear that the former partners are not parties to the indictment with which these petitions are concerned.

[85] We shall accordingly pronounce a declarator in terms of head (a) of paragraph 15 of each of the petitions.

[86] We also think it appropriate to record that the hearing of the extensive and well conducted oral debate in these petitions took place under the chairmanship of the late Lord Macfadyen, with Lords Eassie and Lord Wheatley as the other members of the Bench. ~~Following an initial deliberation on parties' submissions,~~ Lord Macfadyen ~~valiantly~~ then volunteered to prepare a draft opinion for consideration by other members of the Court. He made progress on that draft opinion of the Court to the extent of preparing the bulk of what was later submitted to parties as the "Note of Facts, Issues and Submissions" but, sadly, the illness, which lead to his untimely death, then accelerated and he was unable to do any further work on the draft. The finalised Opinion which we now issue is to a that material extent based on the groundwork of Lord Macfadyen, to whose valiant industry we are indebted.

[87] It is also appropriate for us to recognise and commend the way in which the parties to these petitions have co-operated in resolving the problems presented by Lord Macfadyen's death by their agreement that matters ~~could~~ should proceed on the basis of the ~~summary~~ "Note of ~~facts~~Facts, ~~and~~ ~~issues~~Issues and Submissions" presented to them, with such alterations as they proposed, and laid before the additional member of the Bench, Lady Paton, for her consideration and the opportunity of her raising any matters upon which she considered she should be addressed. In the event, she did not require to make use of that opportunity and it was agreed that the Court should proceed to issue judgment, which we have just done.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Balmer & Ors v. Her Majesty's Advocate [2008] ScotHC HCJAC_44 (25 July 2008) URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_44.html Cite as: [2008] HCJAC 44, 2008 SCCR 765, 2008 SLT 799, 2008 GWD 26-410, [2008] ScotHC HCJAC_44

Scottish High Court of Justiciary Decisons