clr/1982/1982_2_229.pdf

(1)of the Criminal Code, Cap. 154 (as amended by Law 70/65)—Article written by Chief Editor who was, also, responsiblefor the management or control of the newspaperfor the purposes of section 3(A) of the Press Law, Cap. 79—Whether Chief Editor to be indentified with the Company. The appellants were a company which owned and published the daily newspaper "Simerini". On 31st July 1981 they were found guilty by the District Court of Nicosia of the offence of publishing, on 30th May 1981, in the issue of "Simerini" newspaper of that date, in an article written by a certain Aleccos Constant!nides, of Nicosia, false news, contrary to section 50

(1)of the Criminal Code, Cap. 154, as amended by the Criminal Code (Amendment) Law, 1965 (Law 70/65). The said Constantinides was a co-accused of the appellants before the trialCouit and he wasfound guilty of the same offence as the appellants. 20 It was common ground that Constantinides was the Chief Editor of "Simerini" newspaper and that he has been named by the appellants as the person responsible for the management or control of such newspaper for the purposes of section 3(A) of thePress Law,Cap. 79,asamended by thePress (Amendment) Law, 1965 (Law 69/65). 229 \ Dias Unitedτ. PoUce

(1982)Upon appeal against conviction it was contended that the trial Court was wrong inlaw infindingthat the appellants were criminally liable in respect of the publication of the aiticle in question. Held,that having in mind the relevant principle of law, on 5 the basis only of which, in conjunction with section 20 of Cap. 154, the appellants might have been found guilty of the offence of which they were convicted in the present instance (seeTesco Supermarkets Ltd. v. Nattrass [1971]2 All E.R, 127); and that as the article in question was an article in respect of which 10 Constantinides must, in the circumstances of this case, be regarded as bearingfull responsibility inhis capacity as theChief Editor of the newspaper and, also, as the person who had been named as having the management or control of the newspaper for the purposes of section 3(A) of Cap. 79,-as amended by Law—15 69/65, it was reasonably open to the trial Court to find that, in respect of the article in question, Constantinides was so identified with theappellants that inlaw his writing and publish­ ing of the aforesaid article became an act of the appellants as a company and, therefore, the appellants could be and were 20 righly convicted of the offence of which they were found guilty. Appeal dismissed. Cases referred to: Tesco Supermarkets Ltd, v. Nattrass [1971] 2 All E.R. 127 at pp. 131, 132; R. v. Andrews WeatherfoilLtd. and Others [1972] 1All E.R. 65 at p. 70. 25 Appeal against conviction, Appeal against conviction by Dias United Publishing Company Ltd. who was convicted on the 31st July, 1981 at 30 the District Court of Nicosia (Criminal Case No. 10353/81) on one count of the offence of publishing false news contrary to section 50

(1)of the Criminal Code Cap. 154 (as amended by Law 70/65) and was sentenced by Nikitas, S.D.J, to pay C£250.fine. A. Markides, for the appellants. A. Evangelouy Senior Counsel of the Republic, for the respondents. 230 35 2 C.L.R. Dias United τ. Police TRIANTAFYLLIDES P.gavethefollowingjudgmentof theCourt. The appellants are a company which owns and publishes the daily newspaper "SIMERINI". On31stJuly 1981theywerefound guilty by theDistrict Court 5 of Nicosia of the offence of publishing, on 30th May 1981, intheissueof "SIMERINI"newspaper ofthat date,inanarticle written by a certain Aleccos Constantinides,of Nicosia, false news, contrary to section 50

(1)of the Criminal Code, Cap. 154, as amended by the Criminal Code (Amendment) Law, 10 "1965 (Law 70/65).-— - ._ The said Constantinides was a co-accused of the appellants ___ before thetrialcourtandhe.was found guilty of thesame offence astheappellants. Hewas sentencedtothreemonths'imprison­ ment, which was suspended for threeyears, and the appellants 15 were sentenced to pay a fine of C£250. The. appellants have appealed against their conviction. Constantinides appealed, also, but, during the hearing of his appeal (CriminalAppeal No.4249), which was being heard together with the present appeal, he withdrew it. 20 The appellants have limited their appeal, during its hearing, to only oneof the grounds in Ihenoticeof appeal, namelythat the trial court was wrong in law infindingthat the appellants were criminally liable in respect of thepublication of the article in question. 25 It is commonground that Constantinidesis the Chief Editor of "SIMERINI" newspaper and that he has been named by the appellants as the person responsible for the management or control of such newspaper for the purposes of section 3(A) ofthePressLaw,Cap.79,asamendedbythePress(Amendment) 30 Law, 1965 (Law 69/65). Counsel on both sides have agreed thatthe relevant principle of.law, on the basis only of which, in conjunction with section 20 of Cap. 154, the appellants might have been found guilty of the offence of which they were convicted in the present 35 instance,was laid down by the House of Lords in England in TescoSupermarkets Ltd. v. Nattrass, [1971] 2 All E.R. 127, where Lord Reid stated the following (at pp. 131, 132): 231 Triantafylildes P. Dias United v. Police

(1982)"Where a limited company is the employer difficult questions do arise in a widevariety ofcircumstances in deciding which ofitsofficers or servants isto be identified with the company so that his guilt is the guilt of the company. I must start by considering the nature of the personality 5 which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these; it must act through living persons, though not always one or the 10 same person. Then the person who acts isnot speakingor acting for the company. He is acting as the company and his mind which directshis actsis themind of thecompany. Thereisnoquestionofthecompanybeingvicariously liable. He is not acting as a servant, representative, 15 agent or delegate. He is an embodiment of the company or, one could say, behears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be 20 a question oflawwhether, oncethefacts have been ascertained, a person in doing particular things isto be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability. 25 Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out ordeis from above and it can make no difference that 30 they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently ofinstructionsfrom them. Iseeno difficulty in holding that they have thereby put such a delegate in 35 their place so that within the scope of the delegation he can act as thecompany. It maynot always beeasytodraw thelinebut therearecasesinwhichthe linemust bedrawn. Lennard'scase1 was one of them. I. [1915] A.C.

1. 232 2 C.L.R. 5 Dias United v. Police Trlflntafyllidos P. In some cases the phrase alter ego has been used. I think it is misleading. When dealing with a company the word alter is I think misleading. The person ,who speaksand actsasthecompanyisnot alter. Heis identified with the company''. The Tesco case,supra,wasfollowed in,inter alia,R.v.Andrews WeatherfoilLtd. andothers, [1972] 1All E.R. 65,where Eveleigh J. stated (at p. 70): 10 15 20 25 "It is not every 'responsible agent' or 'high executive1 or 'manager of the housing department' or 'agent acting on behalf of a company' who can by his actions make the company criminally responsible. It isnecessary to establish whether the natural person or persons in question have the status and authority which in law make their acts in the matter under consideration the acts of the company so that the natural person is to be treated as the company itself. It is often a difficult question to decide whether or not the person concerned is in a sufficiently lesponsible position to involve the company in liability for the acts in question according to the law aslaid down bythe authorities. As Lord Reid said in Tesco Supermarkets Ltd. v. Nattrass1: 'It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability'. Lord Reid added 2 : 30 35 *lthink that the true view isthat thejudge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company*. It follows that it is necessaryfor thejudge to invite the jury
2. [1971] 2 All E.R. 127 at 131,
4. [1971] 2 All E.R. at 134- 233 Triantafyllidcs P. Dias United v. Police

(1982)to consider whether or not thereare established those facts which thejudge decidesas a matter oflaware necessary to identify the person concerned with the company". It is useful, also, to refer to thegeneralexposition ofthelaw onthispoint asitistobefound in Halsbury'sLawsofEngland, 5 4th ed., vol. 7, p. 451, paragraph 757: "

1. Directing mind of company. Since a company cannot act of itself, but only through an individual, and even then not necessarily through one and the same individual,thequestionariseswhether ontheonehand aperson 10 so acting is acting as alivingembodiment of the company, or whether, on the other hand, he is merely acting as the company's employee or agent. For most civil purposes it is not necessary to decide the matter, since,usuallyasaresultofthedoctrine ofostensible 15 authority, the company will be bound by the acts of the person acting on its behalf. But the question is frequently a live one so far as the criminal law is concerned, since for the acts of a person who can properly be classified as 'the directing mind of the company' the company will 20 undoubtedly be liable criminallyif those acts arein breach of any of the provisions of the criminal law; but, if the person who has acted is merely an employee or agent, the company may well be able to refute any charge or take advantage ofanyexemptingprovision based on actual 25 fault in the actor. The directors maydelegatepart oftheirfunctions ofmanagement insuchawayastomaketheirdelegate anembodiment of thecompanywithinthesphere ofthe delegation; but they do not do thismerely because, of necessity, mini- 30 sterial functions have to be delegated. Once the facts relating to the precise position of the person alleged to form the directing mind of the company have been ascertained, it is a question oflaw whether that person, in doing a particular act, isor isnot to beregarded as thecompany. 35 The main considerations are the relative position in the company whichheholdsand theextent towhich,asmatter offact, heisin actual control of its operations or a section of them without effective superior control". 234 2 C.L.R. Dias United v. Police Triantafyllides P. Ashasbeen,already,stated,onthepiesentoccasionthearticle in question was written by the aforementioned Constantinides himself. It was an article in respect of which Constantinides 5 must, in the circumstances of this case, be regarded as bearing full responsibility in his capacity as the Chief Editor of the newspaper and, also, as the person who had been named as having themanagment or control of thenewspaperfor thepurposes of section 3(A) of Cap. 79, as amended by Law 69/
2. 10 Inthelightofalltheforegoing wehavereachedtheconclusion that it was reasonably open to the trial court to find that, in respectofthearticleinquestion,Constantinideswassoidentified with the appellants that in law his writing and publishing of the aforesaid article became an act of the appellants as a com15 pany and, therefore, the appellants could be and were rightly convicted of the offence of which they were found guilty. Consequently,thisappealfailsanditisdismissedaccordingly. Appeal dismissed. 235