RL & Anor, R. v

For a strict-liability pollution offence, an unincorporated association may be a “person” if the definition in Interpretation Act 1978 applies and no contrary intention appears. The absence of express procedural machinery or an officers’ liability clause does not itself show a contrary intention. Individual members may also incur primary, rather than vicarious, liability where their membership makes them joint maintainers of the polluting installation. A provision imposing liability on culpable officers of bodies corporate cannot be rewritten to exempt members of an unincorporated association. The Crown may select the appropriate defendant, subject only to the limited abuse-of-process jurisdiction.

Heating oil escaped from a fractured pipe owned and maintained by an unincorporated members’ golf club, polluting a nearby watercourse. The Environment Agency charged the club’s chairman and treasurer under section 85 of the Water Resources Act 1991. It ultimately alleged no personal fault by either defendant.

At Taunton Crown Court, the judge ruled that the club could be prosecuted in its own name, but that its individual members could not be prosecuted without personal culpability. The Crown appealed that ruling under section 58 of the Criminal Justice Act 2003. The central issues were whether the club was a statutory “person” capable of prosecution and whether its members could bear primary strict liability.

1. Appeal allowed in part. The Crown was entitled to appeal. A ruling need not terminate proceedings to be appealable under section 58 of the Criminal Justice Act 2003; it is sufficient that it relates to a count on the indictment. In any event, this ruling had ended the prosecution of the two defendants.

2. The judge was right that the club could be prosecuted. Under section 5 and Schedule 1 of the Interpretation Act 1978, “person” includes an unincorporated body unless a contrary intention appears. The absence from the Water Resources Act 1991 of procedural provisions adapted for such a body, or of a specific provision expressly imposing its criminal liability, did not disclose a contrary intention. The court confined that conclusion to the strict-liability offence in section 85 and did not decide the position for offences requiring mens rea.

3. The judge erred in treating section 217(1) as if it extended to officers or members of an unincorporated association. The court could not insert such a qualification. An unincorporated association has no legal identity separate from its members. Applying Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, each member jointly maintained the tank and so had primary liability for causing the escape. That was not vicarious liability for an offence of the club.

4. A prosecution could therefore be brought against the club or individual members. The Crown accepted that prosecution of the club was appropriate here. It was not in the interests of justice to order a fresh trial of the individual defendants, and their acquittals were directed under section 61 of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — the Crown’s appeal under section 58 of the Criminal Justice Act 2003 was allowed in part. The court upheld the ruling that the club could be prosecuted, reversed the ruling protecting individual members from strict liability, but directed the respondents’ acquittals.
• Taunton Crown Court — Judge Overend ruled that the unincorporated golf club could be prosecuted under section 85 of the Water Resources Act 1991, but that the chairman and treasurer could not be prosecuted without personal culpability.