The case R v RL and JF (28 August 2008) arose when heating oil escaped from a fractured pipe into a nearby watercourse. The pipe, together with the tank and boiler that it connected, was owned by a members' golf club - an unincorporated association.  The fracture was located on land that it occupied.

The Environment Agency initiated a prosecution under section 85(1) Water Resources Act 1991 ("WRA") which makes it an offence for any "person" to cause or knowingly permit any poisonous, noxious or polluting matter to enter any controlled waters. 

It considered that an unincorporated association could not be prosecuted under section 85(1) WRA as it was not a "person" for the purposes of the section.  It considered that the correct approach was to bring the case against two individual members of the club. 

One of the members was the club chairman.  The other was both the club treasurer and also chairman of the "special building committee" which, within the club, oversaw work carried out by contractors which led to the fracture.  There was no suggestion that either defendant was personally culpable in any manner, nor was there any allegation that either had done anything to make him criminally liable beyond being a member of the club which maintained the tank and pipe. 

As the outset of the trial, the defendants sought a ruling from the judge upon motion to quash the indictment.  He ruled in their favour, deciding that:

  • as a matter of statutory interpretation, the golf club could have been prosecuted as an unincorporated association for this offence; and
  • at least in the absence of some personal culpability, the two individual defendants could not be so prosecuted.

The Environment Agency appealed.  The Court of Appeal agreed that the golf club could be prosecuted as an unincorporated association for this offence.  The Interpretation Act 1978 stated that the word "person" in an Act of Parliament included an unincorporated body and the WRA contained nothing suggesting to the contrary.

However, the Court of Appeal refused to say that, in the absence of personal culpability, the two individual defendants could not be prosecuted.  The judge had gone too far in reading into the WRA a provision to this effect for members of unincorporated associations similar to Section 217(3) WRA which makes such a provision for company directors.  It was a necessary consequence of the different nature of an unincorporated association that all its members remain jointly and severally liable for its actions done within their authority.

A prosecution under section 85 WRA can therefore be brought against the unincorporated association and/or against individual members. It is for the Crown in each individual case to determine the defendant(s) whom it seeks to prosecute. The court would interfere only in the very limited case of oppression involving abuse of process. Relevant considerations will include the extent of the association's stability and assets and the nature of the act or omission said to constitute an offence.

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