Scottish High Court of Justiciary Decisons

"(1) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did assault John Diver or Divers, residing there, repeatedly punch, kick and stamp on his head and body, headbutt him, knock him to the ground and repeatedly strike him on the head and body with a piece of wood, a hammer and an ashtray or similar instruments and you did murder him;

and

(2) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did steal a jacket, a suit, a blanket, a jewellery box and a quantity of jewellery".

After trial both the appellant and the co-accused were convicted of those charges.

"Now I'm confident that in due course Mr Mr Findlay [counsel for the appellant] will have a great deal to say to you about Sharon Harkins. And he will tell you, I'm sure, that she was the one who did the killing. And in these circumstances it's appropriate that I say something about his client, James Carslaw.

But James Carslaw did not give evidence, and he did have every right not to give evidence. He's entitled to remain in the dock, as he did, to sit back and to say to the Crown, 'Okay, you brought this charge, you go ahead and prove it', which is what they'd like you to do. Every right to do so, but the other side of that coin, ladies and gentlemen, is that he had every right to do what Sharon Harkin[s]) did and to give evidence; to go in there and give his evidence. He had every right to go in there and explain Sharon's evidence against him because he knew it was coming. No surprise about what Sharon has said. No secrecyt about it at all. The police told him during the course of the interview, 'Sharon's sticking you in it'. And Mr Mr Carslaw has a copy of the transcript of Sharon's interview the same as you have. And yet [sic] long before this case came within these doors. Well, of course, he could (inaudible) all rights. We're told about (inaudible). Well be that as it may. His solicitor or even Mr Mr Findlay we suppose would have read, so, 'Look this is what Sharon's saying about you, pal. What have you got to say about it?'. We'll never know. We'll never know what he may have said by way of explanation or denial.

Likewise with the evidence of James Gillespie. Mr Mr Findlay's assertion to Gillespie that Jay ([i.e. the appellant]) said nothing at all. You may remember he principally put that to Gillespie; is not evidence. That's not evidence. Only Mr Mr Carslaw could speak (inaudible). Only Carslaw could answer or explain Gillespie's evidence. But the morning after Gillespie told you that Sharon's (inaudible) Gillespie said the next morning, Jay has said to him 'I'm going away to (inaudible) cause I've got myself in a bit of trouble cause I fought with someone'. Only by giving evidence could Carslaw deny that and give you an explanation for that. He chose not to. His right, your loss you may think.

And what about the evidence that his boxers and his trousers were at his ankles as he sat in the chair in old John's? Mr Mr Findlay never suggested to Sharon when she was giving her evidence she was lying or mistaken about that. Now remember, she said 'I woke up, Jay's boxers were at his feet and I shouted, 'What the fuck's going on?'. I was angry at Jay'. She said later, 'It was (inaudible).

Her evidence wasn't challenged by Mr Mr Findlay. Instead, Mr Mr Findlay as I noted it said to Sharon 'If the jury accept his trousers were at his ankles, he didn't know that'. And Sharon's answer (inaudible) was, 'I can's say that. I wouldn't know what happened before I woke up'.

Carslaw in his taped interview accepted his boxers were round his ankles. We've got a copy of that (inaudible). (inaudible) see what he says. So it never seems to be accepted, even by (inaudible) that his client's boxers and his trousers were at his ankles. How did they get there? Did Carslaw remove them himself while he was sitting in a chair or, highly unlikely you may think, did old John remove them without Carslaw being aware of it when he was sitting in that chair? Or did Sharon remove them, which Mr Mr Findlay brutally put to her and she completely denied. But had he given evidence these are the sorts of questions I most certainly would have included to Mr Mr Carslaw, but he never did.

So we'll never know, we'll never know because the only person who could answer these questions, Mr Mr Carslaw, chose not to. That, as Mr Mr Findlay will emphasise, is his right. And I do too; of course it is his right. But bear in mind the questions Mr Mr Findlay put to witnesses such as Gillespie. He said no such thing. Nonsense. No evidence. That evidence could only have come from Mr Mr Carslaw.

Ladies and Gentlemen, I ask you not to rush to accept the Depute's invitation and to convict Sharon Harkins. There's no point in doing so and then looking back having done so in your wee quiet moments, when you're alone, saying to yourselves, 'Was I right? Was I right to accept the Crown's evidence? Did I have no reasonable doubt?'".

[67] In our view the statement oforf general rule or principle made by the Court in Shevlin is to be found in paragraph 17 of theits Opinion of the Court:

"In a case such as this counsel is entitled to present his client's defence to the fullest extent that is open to him. In the exercise of his right to comment on the case for another accused, counsel is soundedsubject only to the normal restraints of professional propriety and courtesy. He may not mislead the jury as to the facts or the law and he should express himself with the discretion ofthat both judge and jury are entitled to expect. If he is to comment on the fact that the co-accused was silent in circumstances where he had a right to be silent, counsel must, in making such comments, duly acknowledge that the accused had that right".

[78] As we have already indicated, in the present case counsel for the co-accused was careful to emphasise that the appellant had every right not to give evidence. He did so both at the beginning of the chapter of his speech commenting on the appellant's not having given evidence and also towards its close. Counsel for the co-accused thus did not misrepresent the law respecting an accused's right not to give evidence; nor is it suggested that in this case counsel for the co-accused misled the jury as to the factual evidence. In these circumstances we do not consider that what was said by counsel for the co-accused involved any professional impropriety. Indeed, Mr Mr Findlay made clear that he did not contend that any such professional impropriety was committed. What Mr Mr Findlay advanced to us was, as we have indicated, that the comments were inappropriate and ill chosen; and might invite speculation on the part of the jury.

[89] Given Mr Mr Findlay's acceptance (which we think was rightly given) that counsel for the co-accused did not commit any impropriety by breaching any deontological rule of the kind indicated by the Court in Shevlin, the complaint appears essentially to be one which relates to the content and choice of language impliedemployed by counsel for the co-accused. Subject to the deontological requirements indicated by the Court in Shevlin, we consider that the choice of language and content of an address to the jury is essentially a matter for counsel. Counsel has to decide the best way in which to advance his client's case, while always remaining within thethose deontological limits. The Court should be slow to pass strictures on the heightright of counsel for the defence to exercise that freedom. In the present case, as we understood Mr Mr Findlay's well presented submission, the ultimatehis basic concern was that what was said by his fellow counsel at the trial might have invited the jury to speculate. We have to say that we do not consider that what was said by counsel for the co-accused constituted an invitation to speculate. It simply indicated the absence of evidence and the inability of the jury to take any view as to what might otherwise have been the position, had evidence been given.

[910] Further, as is plainly indicated in paragraph 19 of its Opinion in Shevlin, the Court indicated that there was in any case such as this the further issue of whether any impropriety in the speech by one counsel to the jury resulted in irremediable prejudice to the defence of a co-accused. In that regard it is to be noted that in the present case the speech by counsel for the co-accused, of which complaint is made, preceded that of counsel for the appellant. So counsel for the appellant had the opportunity to counter what had been said by counsel for the co-accused in this respect. Mr Mr Findlay confirmed to us that, without precise recollection of what he had said, he would undoubtedly have responded "robustly" to all that had been said by counsel for the co-accused, including the passage on the appellant's not having given evidence.

[1011] Given that robust response, which, given the Court's trial experience of Mr Mr Findlay's undoubted skills in these respects, is exactly what would have been expected, we consider that the trial judge was well advised not to enter furthermake any great entry into the arena of this controversy between counsel for the respective accused when he came to charge the jury. FurtherWe would add however that, in the course of his directions, at page 17 of the transcript of the charge to the jury, the trial judge was at pains to point out the right of an accused person not to give evidence. He said, inter alia:-

"You simply cannot draw any conclusion from the choice of not leading evidence or make any assumption because an accused person has chosen not to give evidence.

.......

So there is simply nothing that can be drawn out of or inferred or assumed about the situation where an accused person does not give evidence".

[1112] In these circumstances we were satisfied that it was not established that any miscarriage of justice had occurred. For these reasons we considered that the appeal had toshould be refused.

Introduction

[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.

[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.

[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.

"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 debt 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 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.

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

"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.

"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.

"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.

"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).

"... 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.

"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 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.

"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.

"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:

"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".

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."

"...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".

[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 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 opening of such an indictment.