Tesco Supermarkets Ltd –v- Nattrass  AC 153 is a well known case that describes and limits the application of what is known as the attribution or identification principle. This determines under what circumstances a company can be considered to have committed a criminal offence as a result of the acts or omissions of any of its directors or employees. In the words of Lord Reid (at paragraph 170):
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 same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears 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 is the guilt of the company. 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.
In practice this has meant that there has to be a close connection between the acts or omissions of any particular employees and the company itself; in many cases, successful prosecutions of companies have only followed where the criminal offence has been committed by a managing director/sole or majority shareholder in a small company (see my earlier post on corporate manslaughter).
When the News of the World royal correspondent Clive Goodman and inquiry agent Glenn Mulcaire were found guilty for offences under the Regulation of Investigatory Powers Act 2000 (RIPA) (and Criminal Law Act 1977), it appeared at the time that the interception of communications by them was, as far as the News of the World was concerned, the act of one rogue reporter and his agent. In the words of the last ever editor of News of the World, Colin Myler, to the Press Complaints Commission, the episode concerning Clive Goodman and Glenn Mulcaire was “an exceptional and unhappy event in the 163 year history of the News of the World, involving one journalist”. There was no suggestion that News International was considered for prosecution at the time Clive Goodman and Glenn Mulcaire were prosecuted.
In light of more recent events, there are indications that the scope of hacking by Glenn Mulcaire for News of the World was much more widespread than merely working for one rogue reporter. There are also suggestions that involvement of the editors at the time, Andy Coulson (arrested today) and Rebekah Brooks, means that there is a real prospect that if they can be considered to be the controlling mind of News International for the purposes of RIPA criminal offences, then News International could itself be prosecuted under RIPA.
This leads to another interesting conclusion. RIPA, like many Acts of Parliament, includes a provision that catches directors of companies that are prosecuted for a criminal offence. The RIPA version of this provision states, at section 79(1):
79 Criminal liability of directors etc.
(1) Where an offence under any provision of this Act other than a provision of Part III is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) any person who was purporting to act in any such capacity,
he (as well as the body corporate) shall be guilty of that offence and liable to be proceeded against and punished accordingly.
So if editors of newspapers are considered sufficiently close to a newspaper to be its controlling mind for the purposes of a relevant criminal offence, and directors of that newspaper neglected to ensure that practices and procedures in the company were lawful or condoned the illegal practices that enabled the newspaper to score many scoops, then those directors may also be criminally liable. In this light, the statement by James Murdoch concerning the closure of the News of the World makes interesting reading.
It should be noted that given current company case law following Tesco Supermarkets v Nattrass, it is a big “if” to consider that the identification principle would result in News International being successfully prosecuted as a result of actions by its editor(s). Consequently, the prospect of James Murdoch or other directors facing prosecution is even more remote.