Environment – Unincorporated associations – Clubs – Criminal liability – Pollution

R v (1) RL (2) JF: CA (Crim Div) (Lord Justice Hughes, Mr Justice David Clarke, Mr Justice Blair): 28 August 2008

The appellant Crown appealed against a decision that a golf club, which was an unincorporated association, could have been charged with an environmental offence under section 85 of the Water Resources Act 1991, and that members of the club could not be so charged in the absence of personal culpability.

During the course of building work carried out by independent contractors at a golf club, an underground pipe taking heating oil from a storage tank to a boiler was fractured, and some 1,500 litres of oil escaped and polluted a nearby watercourse. The Environment Agency initiated a prosecution against two members of the club, the first being the club chairman and the second being the treasurer and chairman of the special building committee, which supervised the work in question. It was not alleged that either defendant was personally culpable for the leakage. The club had 900 or so members. At the outset of the trial, the defendants sought a ruling from the judge on a motion to quash the indictment. He ruled in their favour, deciding that the golf club could have been prosecuted as an unincorporated association and that the two individual defendants could not be so prosecuted in the absence of some personal culpability. The defendants submitted that the club was a person for the purposes of the offence-creating section because the definition of ‘person’ in schedule 1 of the Interpretation Act 1978 included an unincorporated body of persons. The Crown submitted that in reading section 85 of the 1991 act a contrary intention appeared, within the meaning of section 5 of the 1978 act, so that the schedule 1 of the 1978 act definition of ‘person’ did not apply, because the 1991 act did not contain a specific provision making an unincorporated association criminally responsible in its own name.

Held: (1) Several statutes did make specific provision for the criminal liability of unincorporated associations. However, those provisions varied so greatly that no settled policy could be discerned from them, and it was impossible to conclude that there was a form of enactment which was to be expected if an unincorporated association was to be criminally liable, the absence of which signalled a contrary intention for the purposes of section 5 of the 1978 act. The potential procedural complications relied on by the Crown in the instant case did not justify the conclusion that a contrary intention was to be gathered from the absence of procedural provisions in the 1991 act, R v W Stevenson & Sons (a partnership) [2008] EWCA Crim 273, [2008] Bus LR 1200 applied. The instant offence was an environmental offence of strict liability, in effect making the landowner criminally responsible if his tank leaked. The natural defendant was the landowner. In the instant case that was, in ordinary language, the club, rather than its members, or any of them. The means of a defendant were directly relevant to fixing a fine on conviction and plainly what ought to be relevant were the assets and financial position of the club rather than that of any member or members. The judge was right that the prosecution of the club was permissible in law. The definition of ­‘person’ in the 1978 act applied and no contrary intention appeared.

(2) The judge had erred in ruling that the individual defendants could not be prosecuted. He based that decision on section 217(1) of the 1991 act, which provided for the officers of a body corporate to be criminally liable where an offence had been committed with their consent or connivance or was attributable to their neglect. The judge concluded that Parliament could not have intended that the criminal liability of officers of an unincorporated association should be greater than that of their counterparts in a corporation, but that conclusion could not be justified. The nature of an unincorporated association was such that all of its members remained jointly and severally liable for its actions done with their authority. In the present case, all the members of the club were maintainers of the oil tank and all were guilty of the strict liability offence of causing the leak. Their liability was primary, not vicarious. The correct position was that a prosecution under section 85 of the 1991 act could be brought against either the club or against individual members. In the circumstances, the correct course was to proceed against the club and to direct the acquittal of the defendants.

Appeal allowed in part.

G Lucie (instructed by the Environment Agency) for the Crown; N Fryer (instructed by Morgan Cole and CIP) for the respondents.