[COURT OF APPEAL]

REGINA v. BOAL

Health and Safety - Fire precautions - "Manager" - Breaches by company of requirements in fire certificate - Assistant general manager of company's shop responsible for day to day running - Whether criminally liable for breaches - Fire Precautions Act 1971 (c. 40), s. 23(1)

The appellant, who was employed by a company as assistant general manager of its bookshop, had responsibility for the day to day running of the shop but had been given no training in management, health and safety at work or fire precautions. On a day when he was in charge of the shop, while the general manager was away on holiday, serious breaches were found of the requirements of the fire certificate in force for the premises. The company and the appellant were arraigned on an indictment containing counts charging offences under section 7(4) of the Fire Precautions Act 1971¹ and alleging that the appellant was criminally liable as a "manager" within section 23(1) of the Act of 1971. He was given legal advice which assumed that he was incontestably a manager within the meaning of section 23, and he pleaded guilty to some counts, was convicted on others and acquitted on one.

On appeal against conviction: -

Held, allowing the appeal, that section 23 of the Fire Precautions Act 1971 was intended to fix with criminal liability only those who were in a position of real authority, who had both the power and the responsibility to decide corporate policy; that, since the appellant could well have been regarded as responsible merely for the day to day running of the shop rather than having a governing role respecting the affairs of the company, it was likely that the defence that he was not a manager within section 23 would have prevailed if it had been advanced; that, albeit he had made an unequivocal plea of guilty, he had without fault on his part been deprived of a probably good defence in law to the charges against him; and that, accordingly, the conviction was unsafe and unsatisfactory and would be quashed (post pp. 597G-598A, G-H, 599F-G).

Gibson v. Barton (1875) L.R. 10 Q.B. 329 and Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460, C.A. applied.

In re A Company [1980] Ch. 138, C.A. explained.

The following cases are referred to in the judgment:

Company, In re A [1980] Ch. 138; [1980] 2 W.L.R. 241; [1980] 1 All E.R. 284, C.A.

Gibson v. Barton (1875) L.R. 10 Q.B. 329

1 Fire Precautions Act 1971, s. 7(4): "if, while a fire certificate is in force in respect of any premises, any requirement imposed thereby is contravened ... by anything done or not done ... in relation to any part of the relevant building, every person who ... is responsible for that contravention shall be guilty of an offence..." S. 23(1): see post, p. 594G-H

Johnson (B.) & Co. (Builders) Ltd., In re [1955] Ch. 634; [1955] 3 W.L.R. 269; [1955] 2 All E.R. 775, C.A.

Reg. v. Ensor [1989] 1 W.L.R. 497; [1989] 2 All E.R. 586, C.A.

Reg. v. Lee (Bruce) [1984] 1 W.L.R. 578; [1984] 1 All E.R. 1080, C.A.

Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460; [1969] 3 All E.R. 1065, C.A.

Rex v. Forde [1923] 2 K.B. 400, C.C.A.

The following additional cases were cited in argument:

Reg. v. Gautam [1988] Crim.L.R. 109, C.A.

Reg. v. Swain (Note) [1988] Crim.L.R. 109, C.A.

Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153; [1971] 2 W.L.R. 1166; [1971] 2 All E.R. 127, H.L.(E.)

APPEAL against conviction.

The appellant, Francis Steven Boal, assistant general manager of a bookshop owned by his employers, W. & G. Foyle Ltd., a corporation, on 17 January 1990 in the Crown Court at Middlesex Guildhall before Judge Lowe and a jury, was convicted on seven counts charging contravention of the requirements of a fire certificate, contrary to section 7(4) of the Fire Precautions Act 1971 and on another count by a majority of 11 to 1; he pleaded guilty to three similar counts. He was sentenced on each of eight counts to imprisonment for one month concurrent, suspended for 12 months, and on each of two counts to imprisonment for three months concurrent, suspended for 12 months. He was acquitted on a further count of contravening a requirement of a fire certificate. He was joined in the indictment with his employers, who on similar counts were convicted of eight and pleaded guilty to three counts and were fined £21,750 and ordered to pay prosecution costs of £6,669.

The appellant, who had sought leave to appeal against sentence, was given leave by the full court (Lord Lane C.J., Mann L.J. and Potts J.) on 2 October 1990, to appeal out of time against conviction and sentence. He appealed against conviction on the grounds that in all the circumstances it should be set aside as being unsafe or unsatisfactory and/or was a wrong decision in law and/or there had been a material irregularity in the course of the trial in that at no material time had he been a "director, manager, secretary or other officer of the body corporate," and had not purported to act in any such capacity within section 23 of the Fire Precautions Act 1971; his pleas of guilty to three counts had been made under the misapprehension that he was such a person within such meaning; and, while he made no criticism of the judge, the judge had not directed the jury on and had not invited them to consider whether or not the appellant might or might not to be a person within section 23.

The facts are stated in the judgment of the court.

Kevin de Haan, who did not appear below, for the appellant. A prerequisite for liability under section 23 of the Fire Precautions Act 1971 is that the person charged must be a "director, manager, secretary, or other similar officer of the body corporate, or [a] person purporting

to act in any such capacity." That is a common provision in statutes creating regulatory offences. Its meaning was considered in Gibson v. Barton (1875) L.R. 10 Q.B. 329, 336, in relation to section 26 of the Companies Act 1862 (25 & 26 Vict. c. 89) and Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460, 1467D-E, 1467H-1468A in relation to section 15(3) of the Restrictive Trade Practices Act 1956. [Reference was also made to In re A Company [1980] Ch. 138; In re B. Johnson & Co. (Builders) Ltd. [1955] Ch. 634, 661; Reg. v. Gautam [1988] Crim. L.R. 109; Reg. v. Swain (Note) [1988] Crim. L.R. 109 and Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153.] All the authorities favour a narrow meaning of "manager," someone involved in the management of the company itself. For a person to be a manager in that sense, he must be shown to be a person in real authority, a decision maker with the power and responsibility to determine corporate policy and strategy.

The burden of proving that the appellant is a manager of the company lies on the prosecution. The fact that he was standing in, on the relevant day, for the general manager does not mean that the appellant was purporting to act in the capacity of a manager of the body corporate. The general manager is not himself, and there is no evidence that he is, such a person.

The significance of an important matter of law was missed by the appellant's legal advisers. None of the relevant textbooks sets out who is a manager in such circumstances in relation to section 23 of the Act of 1971: see Stone's Justices' Manual 1991, 123rd ed., vol. 2, p. 3170, para. 7-15050; Halsbury's Statutes, 4th ed., vol. 35 (1987), pp. 453-454 and Redgrave Fife & Machin, Health and Safety (1990), pp. 231-232. At a prosecution in 1987 not only the company but also the general manager and the then assistant general manager under the same legal advice had pleaded guilty. The result was that, the appellant through no fault of his own has been deprived of a defence which is properly open to him and should have been before the court of trial and his pleas of guilty were entered under a misapprehension as to the law governing his position. Although the appellant cannot rely on "flagrantly incompetent advocacy" (see Reg. v. Ensor [1989] 1 W.L.R. 497, 502F), there must be a lurking doubt about injustice having occurred, the verdicts are unsafe and unsatisfactory and the court has jurisdiction to allow the appeal: see Rex v. Forde [1923] 2 K.B. 400 and Reg. v. Lee (Bruce) [1984] 1 W.L.R. 578, 583, per Ackner L.J.

Witold Pawlak for the Crown. The appellant is properly to be regarded as a manager of the company. Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460 can be distinguished as relating to remote branch managers of a substantial public company, whereas the appellant is acting within a single bookshop, which is the company's only bookshop, and is number four in the hierarchy, including the two directors. Who is a manager within section 23 of the Act of 1971 is a question of fact in each case and the appellant's legal advisers are in a better position to know the factual situation than is the prosecution. The court does not know what

information was available to the appellant's then solicitors, they being the solicitors for the company.

The decision or advice of the appellant's legal advisers does not provide him with a ground of appeal because of a present disagreement with it or because his present advisers consider that evidence available to the prosecution would be inadequate if the issue is put to the test: see Reg. v. Ensor [1989] 1 W.L.R. 497; Reg. v. Gautam [1988] Crim. L.R. 109 and Reg. v. Swain (Note) [1988] Crim. L.R. 109. The position may vary from company to company, depending on its organisation: see Tesco Supermarkets Ltd. v. Nattrass [1972] A.C. 153, 171, 187-188.

The appellant entered unequivocal pleas of guilty and has been sentenced. He should, thereafter, not be permitted to withdraw those pleas. Furthermore, the plea of guilty amounted to an admission that, on information known to him and his legal advisers, the appellant did fall within section 23 of the Act of 1971 and, therefore, the prosecution would not be put to proof thereof. The court will not, without fresh evidence, go behind the admissions made just because the appellant is now said to have been under a misapprehension and the prosecution, if it had been put to proof of the issue at trial, might not have succeeded on the evidence then presented.

13 March. SIMON BROWN J. read the following judgment of the court. The appellant is employed by W. & G. Foyle Ltd. ("Foyles"), the well known booksellers in Charing Cross Road. He has worked for them now for some 10 years in all. In about November 1988 he was promoted from being senior sales assistant in their technical department to assistant general manager.

On 15 February 1989 the appellant was in charge of the shop: the general manager, Mr. Cruickshank, had gone away on a week's holiday. That day officers of the London Fire and Civil Defence Authority inspected the shop following a complaint by a member of the public. They found a number of serious breaches of the premises' fire certificate. To instance but a few, various lighting was defective, certain fire escape routes were narrowed or blocked by an accumulation of boxes and books, a number of doors were bolted and, most serious of all, two sets of double entrance doors were padlocked shut.

On 10 January 1990 both the appellant and Foyles were arraigned before Middlesex Crown Court upon an indictment containing 11 pairs of counts, 22 counts in all. Each even numbered count charged against the appellant an offence contrary to section 7(4) of the Fire Precautions Act 1971, criminal liability on his part being alleged to arise by virtue of section 23 of the Act.

Section 23(1) in its material parts provides:

"Where an offence under this Act committed by a body corporate is proved . . . to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate . . . he as well as the body corporate shall be guilty of that offence . . ."

The 11 counts directed against the appellant charged that he was "a manager" of Foyles when the relevant offences were committed by them and that such offences were attributable to his neglect.

The appellant was at the time advised by different solicitors and counsel from those presently instructed. Underlying their advice was the assumption that the appellant was incontestably a manager within the meaning of section 23. Upon that assumption he pleaded guilty to three of the 11 counts which he faced.

On 17 January 1990, following a trial, the jury found him guilty of seven additional counts: he was acquitted of one. That same day he was sentenced by Judge Lowe to three months' imprisonment suspended for 12 months. That was the sentence passed concurrently on each of the two counts involving padlocked double doors. Concurrent sentences of one month's imprisonment suspended for 12 months were imposed upon each of the other eight counts for which he fell to be sentenced.

Foyles too had pleaded guilty to three counts and been convicted of eight others. They were fined a total of £21,750 and ordered to pay prosecution costs of £6,669. Suffice to say that the penalties imposed upon them appear to have been richly deserved: in 1987 they had had to plead guilty to similar contraventions of the Act.

The appellant initially sought leave to appeal solely against sentence, contending that a term of imprisonment, albeit suspended, was wholly inappropriate for a first time offender in his position. Upon leave being refused by the single judge his application was renewed to the full court. On 2 October 1990, this court, presided over by Lord Lane C.J., of its own motion expressed doubt whether the appellant was in fact a "manager of the body corporate" within section 23, and in the upshot granted leave to appeal not merely against sentence but also, out of time, against conviction. Thereupon counsel originally instructed settled grounds of appeal against conviction in which he asserted that the appellant was at no material time a "manager or other similar officer" of Foyles within section 23 and that his pleas of guilty had been made "under the misapprehension that he was."

Mr. de Haan who now appears for the appellant advances two central submissions upon this unusual appeal. First, that the appellant, through no fault of his own but rather because of his lawyers' misappreciation of the true scope of section 23, was deprived of a defence which would have had a realistic prospect of succeeding at trial. Second, that in those circumstances this court should allow his appeal and set aside the conviction even though the appellant pleaded guilty to three counts at trial and never contested this particular element of the offences charged against him.

In support of his first submission Mr. de Haan invites our attention to three authorities which bear upon the proper construction and application of the words "manager of the body corporate" appearing in section 23, words which appear as part of a similar formulation in various other statutory contexts.

The first is Gibson v. Barton (1875) L.R. 10 Q.B. 329 where the court was concerned with section 26 of the Companies Act 1862 (25 & 26 Vict. c. 89): "every director and manager of the company who shall

knowingly and wilfully authorise or permit such default (in not forwarding an annual list of members) shall incur a like penalty." Blackburn J. said, at p. 336:

"In what sense are the words 'director' and 'manager' used in that section? When the section says 'director,' it is plain enough a director is a director, but the words are 'and manager.' We have to say who is to be considered a manager. A manager would be, in ordinary talk, a person who has the management of the whole affairs of the company; not an agent who is to do a particular thing, or a servant who is to obey orders, but a person who is intrusted with power to transact the whole of the affairs of the company."

The second case is Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460. The statutory provision there in question was section 15(3) of the Restrictive Trade Practices Act 1956:

"Where notice under section 14 of this Act has been given to a body corporate, an order may be made under this section for the attendance and examination of any director, manager, secretary or other officer of that body corporate; . . ."

In giving the leading judgment of the Court of Appeal Lord Denning M.R. said, at p. 1467:

"It is not right in this section to give the word 'manager' or 'officer' an extended meaning. It is contrary to the spirit of our law. The law of England abhors inquisitorial powers. It does not like to compel a man to testify against himself. . . . When Parliament thinks it right to give the power to administer questions, it should do so in clear terms, specifying who is the person to be interrogated: just as it should make clear who is the person to be made guilty of a criminal offence."

Lord Denning M.R. cited with approval the passage from Blackburn J's judgment in Gibson v. Barton, L.R. 10 Q.B. 329 to which we have already referred and a passage from Jenkins L.J.'s judgment in In re B. Johnson & Co. (Builders) Ltd. [1955] Ch. 634, 661 and continued [1969] 1 W.L.R. 1460, 1467-1468:

"That is the meaning of the word 'manager' in the Companies Acts 1862-1967 and we should apply it here also. The word 'manager' means a person who is managing the affairs of the company as a whole. The word 'officer' has a similar connotation. . . . the only relevant 'officer' here is an officer who is a 'manager.' In this context it means a person who is managing in a governing role the affairs of the company itself."

The third case is In re A Company [1980] Ch. 138 in which the Court of Appeal placed an altogether wider meaning upon comparable words in section 441(1) of the Companies Act 1948:

"If . . . there is shown to be reasonable cause to believe that any person has, while an officer of a company, committed an offence in

connection with the management of the company's affairs and that evidence of the commission of the offence is to be found in any books or papers of or under the control of the company, an order may be made . . ."

By section 455 of the Act of 1948 the word "officer" in relation to a body corporate was defined to include a director, manager or secretary.

Recognising that the meaning of the word "officer" must always depend upon the context in which it is used, Lord Denning M.R. said, at p. 143:

"The officer here referred to is a person in a managerial situation in regard to the company's affairs. I would not restrict these words too closely. The general object of the Act is to enable the important officers of the state to get at the books of the company when there has been a fraud or wrongdoing. It seems to me that whenever anyone in a superior position in a company encourages, directs or acquiesces in defrauding creditors, customers, shareholders or the like, then there is an offence being committed by an officer of the company in connection with the company's affairs.

In a short concurring judgment Templeman L.J. added, at p. 145:

"Section 441 does not convict anybody. It merely enables a judge of the High Court on the application of the experienced and responsible officials who are mentioned in the section to make quite sure that when there is a slightly unpleasant aroma hanging around somebody should be sent in to trace the source and find out what is going on."

It is perhaps worth noting that Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460 was cited to the Court of Appeal in In re A Company [1980] Ch. 138 but was not referred to in the judgments: the court - and Lord Denning M.R. not least - can hardly be thought to have been doubting his earlier view; rather they were recognising that the words "officer" and "manager" take on different meanings depending upon the context in which they are used.

As Mr. de Haan submits and we accept, section 23 of the Fire Precautions Act 1971 falls to be construed in a markedly similar context to that of the earlier authorities cited - a very different context from that arising in In re A Company [1980] Ch. 138. Here, as in Gibson v. Barton, L.R. 10 Q.B. 329, a person falling within the definition is being made guilty of a criminal offence. Whereas, as Templeman L.J. made plain in In re A Company [1980] Ch. 138, 145: "Section 441 does not convict anybody."

It follows from all this that the appellant was only properly to be regarded as imperilled by section 23 if, as the assistant general manager of the shop, he had "the management of the whole affairs of the company," was "intrusted with power to transact the whole of the affairs of the company," and was "managing in a governing role the affairs of the company itself." The intended scope of section 23 is, we accept, to fix with criminal liability only those who are in a position of real authority, the decision-makers within the company who have both the

power and responsibility to decide corporate policy and strategy. It is to catch those responsible for putting proper procedures in place; it is not meant to strike at underlings.

What, then, was the appellant's real position in the company? The fact is that because this whole question went by default, there is scant evidence about this in the documents before us. We are told that the only directors of the company are Miss Christina Foyle and her husband, and that the only other person senior to the appellant was Mr. Cruickshank the general manager. In evidence the appellant described his duties thus:

"My primary duty was to be the chief buyer, checking the orders generated by our assistants and presented to me by the representatives. The rest of my work was in the cash office counting the money sent up from the shopfloor, making sure that it was sent down to the bank in its correct fashion, and generally anything else required of management. I had to maybe ensure the staff were in when they were supposed to be in. I had to assist them in anything that they required. There were all other managerial functions."

That said, it certainly appears that the appellant was given no management training by the company, least of all in matters of health and safety at work or fire precautions. When, however, asked at trial "Who is generally responsible on the premises within your organisation for fire safety?" he answered in the broadest terms that he and the general manager "both have responsibility for the whole thing really," and accepted that he was aware of the general responsibilities imposed by the fire certificate.

Were these admissions sufficient to indicate that, even on the correct, narrow, approach to section 23, the appellant was properly to be regarded as a manager of the company? Mr. Pawlak for the prosecuting authority submits that they were. This is not, he contends, a case like Registrar of Restrictive Trading Agreements v. W. H. Smith & Son Ltd. [1969] 1 W.L.R. 1460 where those in question were merely remote branch managers of a substantial public company; rather Foyles' sole activity is their single large bookshop and, as stated, the appellant was number four in the hierarchy, directors included.

We disagree. Whilst declining to accept the full width of Mr. de Haan's submissions - which include the proposition that not even Mr. Cruickshank as the general manager could properly be said to fall within section 23 - we are certainly disposed to agree that this appellant could well have been regarded as responsible only for the day to day running of the bookshop rather than enjoying any sort of governing role in respect of the affairs of the company itself. Whether or not such a defence, had it been advanced at the trial, must inevitably have prospered, it is frankly not possible to say. The issue would clearly have needed to be explored a good deal further than it was. But we do conclude not merely that such defence would have had a realistic prospect of success but that in all likelihood it would have prevailed.

We pass, therefore, to the second issue: is this a sufficient basis upon which to allow this appeal?

We believe that it is. True, this is not a case in which the appellant can seek to invoke the principle in Reg. v. Ensor [1989] 1 W.L.R. 497: any injustice here suffered by the appellant can hardly be said to result from "flagrantly incompetent advocacy" on the part of his then counsel. Indeed we think it only fair to remark not merely that the trial judge is to be regarded as beyond criticism in this affair but also that one has some sympathy with counsel then appearing for the appellant. For one thing the standard works of law most likely to be consulted upon the scope of section 23 (Stone's Justices' Manual 1991, 123rd ed., vol. 2, p. 3170, para. 7-15050, Halsbury's Statutes, 4th ed., vol. 35 (1987), pp. 453-454, and Redgrave Fife & Machin, Health and Safety (1990), pp. 231-232) are all largely silent upon the point at issue and certainly omit mention of any of the authorities to which we have referred. And for another it may be noted that at the time of the 1987 prosecution, not only had Foyles pleaded guilty; so too had Mr. Cruickshank and the then assistant general manager.

But putting Reg. v. Ensor [1989] 1 W.L.R. 497 aside, there are, we conclude, two other bases upon which this court can entertain this appeal against conviction even despite the unequivocal pleas of guilty to three of the counts. First - see the judgment of this court in Rex v. Forde [1923] 2 K.B. 400 - because it appears that the appellant did not appreciate the nature of the charge. Second, however, and perhaps more tellingly, for the reason stated by Ackner L.J. in this court in Reg. v. Lee (Bruce) [1984] 1 W.L.R. 578, 583:

"The fact that [Lee] was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions on any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications."

In short, this court is not merely empowered but, by virtue of section 2(1)(a) of the Criminal Appeal Act 1968, duty bound to allow an appeal against conviction if in all the circumstances we think such conviction unsafe or unsatisfactory. Accepting, as we do, that the appellant without fault on his part was deprived of what was in all likelihood a good defence in law, that indeed is our conclusion in this case. It follows that we allow this appeal. Had the prosecution desired it, we might in the result have ordered the appellant to be retried. As it is, however, Mr. Pawlak tells us that his clients very sensibly desire no such thing. Accordingly the conviction is quashed, the sentences set aside, and the matter rests there.

We add a short paragraph of warning. This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where

it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.

Solicitors: Hart Fortgang; Head of Legal Services, London Fire and Civil Defence Authority.

L. N. W.