In R v RL and JF (Court of Appeal (Criminal Division) 28 August 2008  EWCA Crim 1970) concerned criminal liability in a members’ golf club. This appears to be the first time the higher courts have directly addressed the question in recent times.
The case involved an underground pipe taking oil from a storage tank to a boiler which had been fractured by workman on the site, causing 1,500 litres of oil to leak into a nearby watercourse. It was a significant pollution incident and the Environment Agency decided to prosecute under the Water Resources Act 1991.
The key pollution offence is one of strict liability, meaning it is not necessary to prove intention or recklessness on the defendant’s part, but simply that they caused the entry of polluting matter into the water. Indeed according to the House of Lords’ 1999 decision in Empress Car Co, the mere maintenance of the tank could be said to have caused the incident.
Strict liability offences in criminal law are unknown in some jurisdictions such as Germany or Austria, but have been a feature of the UK regulatory landscape since the 19th century. One consequence is that it is relatively straightforward to prosecute a company. Where an employee has committed the offence, the company is equally criminally liable under the principle of ‘vicarious liability’.
The problem here was that, unlike a company, a club or unincorporated association strictly has no separate legal entity from its members. The Agency therefore decided to prosecute the club’s chairman and treasurer, though it was agreed at trial that neither were personally responsible, nor were they in a position legally distinct from the club’s other 900 or so members.
At their trial the two individuals argued that in the absence of personal culpability on their part, the club per se should have been prosecuted rather than them.
In the Court of Appeal, Lord Justice Hughes noted that unincorporated associations came in all shapes and sizes, from a casual Sunday football team with fleeting membership to long-established learned societies with substantial assets and written constitutions. Even partnerships were a form of unincorporated association.
In law strictly a company is legally distinct from its members, while an incorporated association has no separate legal status and is simply a group of individuals linked by contract.
But according to Lord Justice Hughes, this elementary proposition "learned by every law student in his first year" concealed a more complicated factual and legal position. Many unincorporated associations had a substantial existence and there were numerous examples of legal provisions that in different circumstances gave some sort of legal personality to such associations. Partnerships, for example, could sue or be sued under their own name.
Liability under the Water Resources Act in the present case was placed on a ‘person’ who caused the pollution. Section 5 of the Interpretation Act 1978 provides that in any statutes, unless the contrary intention appears, the word ‘person’ is to include both corporate and unincoporate persons. The trial judge had concluded that on that basis, the club could have been prosecuted in its own name.
But in the Court of Appeal, the Crown argued that the Interpretation Act’s definition could not be read across because there was a ‘contrary intention’ in the Water Resources Act, in that it did not explicitly make an association criminally responsible in its own name.
The Court of Appeal noted that some statues did indeed make specific reference to partnerships and other unincorporated associations being criminally liable, and quoted from elaborate provisions contained in the Health Act 2006 as an example. But the court found that such provisions varied so widely that it was "impossible to draw from them any general proposition that there is a form of enactment which is to be expected if an unincorporated association is to be criminally liable, and of which the absence signals a contrary intention for the purpose of section 5 of the Interpretation Act".
The court noted that the present environmental offence was one of strict liability and that in the context the natural defendant was the landowner. In this case, in any ordinary language this was the club rather than its 900 or so members as they existed on the day the oil escaped.
A defendant’s means are relevant in fixing a fine, but here it should be the means of the club rather than its individual members. The court noted that even with a strict liability offence, a conviction of the chairman and treasurer could have serious consequences for them and they would have borne criminal records.
The court emphasised that its ruling applied only to strict liability offences, and would not encompass offences where intention or recklessness was a necessary ingredient.
The trial judge had also excluded prosecution against the chairman and treasurer on another ground. He noted that the Water Resources Act (and many other environmental laws) provided for the prosecution of senior officers or directors where a company had committed an offence if there was evidence of individual consent, connivance or neglect. This provision applied only to incorporated bodies, but the judge felt it would be absurd if officers of an unincorporated body were put in a worse position than those of a company. In the absence of personal blame, such officers should not be prosecuted.
The Court of Appeal felt the judge had gone too far: "It is one thing to say that Parliament should have included a further provision in the statute, but it is quite another to rewrite the Act as if it had."
In any event, the legal position of a company and an incorporated association remained different: "It is 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."
It followed that in relation to a strict liability offence as here, all the club’s individual members could be prosecuted and held criminally liable. But as the court had held, it was equally possible to prosecute the club in its own name. The court concluded it would be the Crown’s responsibility in individual cases to determine which defendants to prosecute and the court would intervene only in limited cases that involved an abuse of process. Relevant considerations would include "the extent of the association’s stability and the nature of the act or omissions said to constitute the offence".
The Court of Appeal’s decision is sensible in that it permitted prosecution of a well-established club in its own right. Nevertheless, the result does not mean officers and members of such clubs can now sleep easy as they can still be prosecuted for strict liability offences simply by being part of the club.
With the coming into force of the Regulatory Enforcement and Sanctions Act 2008, the dominance of criminal prosecutions in the regulatory field will be challenged. Regulators may gain access to a wider range of sanctioning powers including the imposition of civil penalties (see pp 34-37 ).
The legislation provides that where the regulator is satisfied an offence has been committed, it may impose a penalty in lieu of a criminal prosecution. The penalty is imposed on the ‘person’ whom the regulator is satisfied has committed such an offence, but with no further definition of the term’s meaning.
It appears therefore that the court’s analysis in the present case will apply to civil penalties under the new Act and the definition of a ‘person’ in the Interpretation Act will read across.
It would follow that where a strict liability offence is involved, the regulator who has acquired the powers could imposed such penalties on either the club itself or on its individual members.
Given the potential oppressive nature of imposing penalties on individual members, regulators may need to include principles of how they will apply penalties to unincorporated associations in their guidance, which is required under the 2008 Act.
Richard Macrory is professor of environmental law, University College London