Grenville Ricardo Delpeache v Commissioner of Police

• Jurisdiction: Caribbean States
• Judge: Wit,Rajnauth-Lee,Barrow,Mr Justice Barrow,Anderson,Burgess
• Judgment Date: 30 July 2021
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No. BBCR2020/004

[2021] CCJ 10 (AJ) BB

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

Before The Honorable:

Mr Justice J Wit, JCCJ

Mr Justice W Anderson, JCCJ

Mme Justice M Rajnauth Lee, JCCJ

Mr Justice D Barrow, JCCJ

Mr Justice A Burgess, JCCJ

CCJ Appeal No. BBCR2020/004

BB Criminal Appeal No. 3 of 2018

Between

Grenville Ricardo Delpeache

Appellant

and

Commissioner of Police

Respondent

Appearances

Mr Andrew Pilgrim QC and Ms Rashida R Edwards for the Appellant

Ms Olivia M Davis and Ms Krystal C Delaney for the Respondent

Cases referred to

Adams v Cape Industries plc [1990] Ch 433; ANSA McAL (Barbados) Ltd v Banks Holding Ltd and SLU Beverages Ltd (Barbados CA, 11 December 2015); Bay Trust Corporate Services Ltd v Longsworth [2020] CCJ 8 (AJ) BZ; Canadian Dredge and Dock Co Ltd v The Queen [1985] 1 SCR 662; Delpeache v Commissioner of Police (Barbados CA, 18 September 2020); Effort Shipping Co Ltd v Linden Management SA, The Giannis NK [1998] 1 All ER 495; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 22; Jones v Lipman [1962] 1 WLR 832; Macaura v Northern Assurance Co [1925] AC 619; Moore v Bresler Ltd [1944] 2 All ER 515; Persad v Singh [2017] UKPC 32 (TT); Prest v Petrodel Resources Ltd [2013] UKSC 34, (2013) 3 WLR 1; R v Angel [1968] 2 All ER 607; R v Boyle Transport (Northern Ireland) Ltd [2016] 4 WLR 63; R v Fell (1981) 64 CCC (2d) 456; R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736; R v Pearce (1981) 72 Cr App R 295; R v Powell and Westwood [2016] EWCA Crim 1043; R v Seager & Blatch [2010] 1 Cr App R (S) 60; R v Shamrock Chemicals Ltd (1989) 4 CELR (NS) 215; R v Zaman [2002] EWCA Crim 1862; Salomon v Salomon & Co Ltd [1897] AC 22; Seward v The Vera Cruz (Owners) (1884) 10 App Cas 59; Short v Treasury Commissioners [1948] AC 534; Tesco Stores Ltd v Brent Borough Council [1993] 2 All ER 178; Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

Legislation referred to

Barbados — Interpretation Act, Rev Ed 1971, Cap 1, Companies Act, Rev Ed 1971, Cap 308, Trade Marks Act, Rev Ed 1971, Cap 319; United Kingdom — Trade Marks Act 1994, Video Recordings Act 1984.

Other Sources referred to

Allen M, Textbook on Criminal Law (8th edn, OUP 2005); Bailey D and Norbury L, Bennion, Bailey and Norbury on Statutory Interpretation (8th edn, Lexis Nexis 2020); Burgess A, Commonwealth Caribbean Company Law (Routledge 2013); Gillies P, The Law of Criminal Complicity (Law Book Co 1980); Halsbury Laws of England (5th edn, 2018) vol 96; Ormerod D C and Perry D, Blackstone Criminal Practice 2021 (31st edn, OUP 2020); Smith J C, Ormerod D C and Laird K, Smith, Hogan and Ormerod's Criminal Law (15th edn, OUP 2018); Williams G, Textbook of Criminal Law (Stevens 1978).

Criminal law — Intellectual Property — Trade mark — Unauthorised trade mark — Trade Marks Act Cap 319, s 50A(1)(a)(b)(c).

Lifting corporate veil — Corporate personality — Appellant director of company — Appellant personally committed criminal acts — Whether appellant or company to be charged — Whether direction of the Director of Public Prosecutions needed to charge appellant — Whether court required to pierce companies' corporate veil — Interpretation Act Cap 1 — ss 22(2)(3) — Trade Marks Act Cap 319, s 50E(1).

The appellant was the sole director of Ouch Boutique Ltd (“the company”) in whose store counterfeit items were sold. The appellant operated the store and was on the premises when the counterfeit items were seized by the police. The appellant was charged with three offences under s 50A(1)(a)(b) and (c) of the Trade Marks Act (“the Act”). At the trial in the Magistrates Court, the appellant was found guilty and appealed to the Court of Appeal which dismissed his appeal and affirmed his conviction and sentence.

The appellant appealed to the CCJ and argued firstly that the Court of Appeal's decision was wrong as the charges which were brought against him personally should have been brought against the company. The appellant argued that while, in certain cases, the courts have “pierced” the corporate veil and looked behind it to see who controls the company and, in certain circumstances, held those persons liable and not the company, this was not a proper case to have done so. The core of the appellant's case was that the separate legal personality of the company protected him, the individual, from personal criminal liability. The appellant did not appeal the Court of Appeal's finding that he personally performed the physical actions and possessed, at the time, the mental state required to establish the offences. The appellant argued secondly that as he was a director, he should have been charged for being complicit in a crime that was allegedly committed by the company under s 22(2) of the Interpretation Act, and that the Commissioner of Police should have obtained the direction of the Director of Public Prosecutions before charging him pursuant to s 22(3) of the Interpretation Act. The respondent argued that the Court of Appeal's decision was correct and that s 50E(1) of the Act provides that an individual may be charged for offences under s 50A(1)(a)(b) and (c). The respondent further argued that s 50E(1) and s 22(2) and (3) of the Interpretation Act were inapplicable as the appellant was guilty of having personally contravened the Act regardless of whether he was liable in his capacity as a director.

The Court, in a judgment authored by Barrow JCCJ, was of the view that in respect of the first issue the appellant was purporting to insert into the criminal law a construct that is quintessentially a company law conception. That company law conception was the legal separation of individuals from the company they formed. The purpose of the legal separation was to insulate or separate the individuals from what they did, acting through the company. The essence of that construct was that what was done was the action of the company and not the individuals. The company law conception of separate legal personality never operated to permit an individual who did a criminal act to say that their actions were done in the name of the company and, therefore, it was the company which must be prosecuted, and not the individual. There is no support either in principle or in authority for the appellant's thesis that there is a corporate veil in criminal law. Where an individual, acting for and through a company, personally performs criminal acts in conducting the company's business, that individual may be prosecuted. The individual gains no protection from the existence of the separate legal personality of the company. There is no principle that a criminal offence, committed in the name of a company, is the action of the company and not of the individual who performed the criminal actions.

Turning to the second issue, the Court was of the view that there was no substance to the ground that the appellant should have been charged for being complicit in a crime that was allegedly committed by the company and that the Commissioner of Police should have obtained the direction of the Director of Public Prosecutions before charging him pursuant to s 22(3) of the Interpretation Act. That the appellant could have been so charged, (under s 22(2) of the Interpretation Act), absolutely does not give rise to the proposition that he should have been so charged.

In a concurring judgment Wit and Rajnauth-Lee JJCCJ were of the view that the judicial “piercing of the corporate veil” doctrine has no place in criminal law proper, in any event where statute law has been adopted to remove any uncertainty or fill any gaps by providing specifically for criminal responsibility of certain corporate officers who might be successful in hiding behind the corporate façade without such a statutory basis. If criminal liability of the individual person can be attributed to the company, both the individual person and the company may be liable. Both can be prosecuted but the prosecutor may also choose to prosecute one of them. In this case the individual person, who, according to the Magistrate and the Court of Appeal, personally committed the actus reus, was prosecuted. The prosecutor simply decided that it was not necessary to go further than that. There was nothing wrong with that decision.

Wit and Rajnauth-Lee JJCCJ also agreed with Barrow JCCJ that s 22(2) of the Interpretation Act did not apply in this case. First, s 22(2) renders a corporate officer of a certain category who had not personally committed an offence committed by that body corporate nevertheless liable to prosecution as if he had personally committed that offence. In this case, the appellant was prosecuted for offences he personally did commit and of which he was personally found guilty. This alone excluded the application of s 22(2). Second, if the reasoning of the appellant were followed properly, s 50E of the Act and not s 22(2) should be applied. The former provision identifies practically the same corporate officers under similar circumstances as mentioned in s 22(2) as personally guilty of the offence committed by the body corporate. Where s 50E squarely provides that such an officer is guilty of the offence, no “as if” situation as contemplated by s 22 occurs. Third, ss 22(2) and 50E do not cover the same ground at least not in the same way, but even if they were to conclude that they did, the legal maxim generalia specialibus non derogant, or better even, its converse generalibus specialia derogant would seem to apply. The special later law overrides the older general law. That would be the case here.

The appeal was therefore dismissed.

Burgess JCCJ in a dissenting judgment, was of the view that the Court of Appeal was incorrect in holding that the appellant was properly charged and convicted of committing the charged offences in his personal capacity on the basis that he acted as...