§ 39 — Offences by unincorporated associations or partnerships

39.—(1) Where, in a proceeding for an offence under this Act or the Regulations, it is necessary to prove the state of mind of an unincorporated association or a partnership in relation to a particular conduct, evidence that —(a)

an employee or agent of the unincorporated association or partnership engaged in that conduct within the scope of his or her actual or apparent authority; and

(b)

the employee or agent had that state of mind,

is evidence that the unincorporated association or partnership had that state of mind.

(2) Where an unincorporated association or a partnership commits an offence under this Act or the Regulations, a person —(a)

who is —(i)

an officer of the unincorporated association or a member of its governing body;

(ii)

a partner in the partnership; or

(iii)

an individual involved in the management of the unincorporated association or partnership and in a position to influence the conduct of the unincorporated association or partnership (as the case may be) in relation to the commission of the offence; and

(b)

who —(i)

consented or connived, or conspired with others, to effect the commission of the offence;

(ii)

is in any other way, whether by act or omission, knowingly concerned in, or is party to, the commission of the offence by the unincorporated association or partnership; or

(iii)

knew or ought reasonably to have known that the offence by the unincorporated association or partnership (or an offence of the same type) would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that offence,

shall be guilty of the same offence as is the unincorporated association or partnership (as the case may be), and shall be liable on conviction to be punished accordingly.

(3) A person mentioned in subsection (2) may rely on a defence that would be available to the unincorporated association or partnership if it were charged with the offence with which the person is charged and, in doing so, the person bears the same burden of proof that the unincorporated association or partnership would bear.

(4) To avoid doubt, this section does not affect the application of —(a)

Chapters 5 and 5A of the Penal Code 1871; or

(b)

any written law or practice regarding the admissibility of evidence.

(5) To avoid doubt, subsection (2) also does not affect the liability of an unincorporated association or a partnership for an offence under this Act or the Regulations, and applies whether or not the unincorporated association or partnership is convicted of the offence.

(6) In this section, “reasonable steps” and “state of mind” have the meanings given by section 38.

—(1) Where, in a proceeding for an offence under this Act or the Regulations, it is necessary to prove the state of mind of an unincorporated association or a partnership in relation to a particular conduct, evidence that —(a)

an employee or agent of the unincorporated association or partnership engaged in that conduct within the scope of his or her actual or apparent authority; and

(b)

the employee or agent had that state of mind,

is evidence that the unincorporated association or partnership had that state of mind.

(2) Where an unincorporated association or a partnership commits an offence under this Act or the Regulations, a person —(a)

who is —(i)

an officer of the unincorporated association or a member of its governing body;

(ii)

a partner in the partnership; or

(iii)

an individual involved in the management of the unincorporated association or partnership and in a position to influence the conduct of the unincorporated association or partnership (as the case may be) in relation to the commission of the offence; and

(b)

who —(i)

consented or connived, or conspired with others, to effect the commission of the offence;

(ii)

is in any other way, whether by act or omission, knowingly concerned in, or is party to, the commission of the offence by the unincorporated association or partnership; or

(iii)

knew or ought reasonably to have known that the offence by the unincorporated association or partnership (or an offence of the same type) would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that offence,

shall be guilty of the same offence as is the unincorporated association or partnership (as the case may be), and shall be liable on conviction to be punished accordingly.

(3) A person mentioned in subsection (2) may rely on a defence that would be available to the unincorporated association or partnership if it were charged with the offence with which the person is charged and, in doing so, the person bears the same burden of proof that the unincorporated association or partnership would bear.

(4) To avoid doubt, this section does not affect the application of —(a)

Chapters 5 and 5A of the Penal Code 1871; or

(b)

any written law or practice regarding the admissibility of evidence.

(5) To avoid doubt, subsection (2) also does not affect the liability of an unincorporated association or a partnership for an offence under this Act or the Regulations, and applies whether or not the unincorporated association or partnership is convicted of the offence.

(6) In this section, “reasonable steps” and “state of mind” have the meanings given by section 38.