| PUBLIC HEALTH – Pollution, control of – Causing polluting matter to enter controlled waters – Escape of heating oil from fractured pipe of tank owned by golf club – Whether golf club could be prosecuted as unincorporated association – Whether individual defendants without personal culpability could be prosecuted – Water Resources Act 1991, ss 85(1), 217(1) – Interpretation Act 1978, s 5, Schedule 1
R v RL and JF [2008] EWCA Crim 1970; [2008] WLR (D) 299
CA: Hughes LJ, David Clarke and Blair JJ: 28 August 2008
A prosecution for the strict liability offence of causing polluting matter to enter controlled waters could be brought against either a club, as an unincorporated association, in its own name or against individual members.
The Court of Appeal, Criminal Division, so held when granting leave to appeal and allowing, in part, an appeal by the Crown, under s 58 of the Criminal Justice Act 2003 against the ruling on 29 January 2008 in the Crown Court at Taunton by Judge Overend, that the golf club could have been prosecuted as an unincorporated association, for the offence of causing polluting matter to enter any controlled waters and that without some personal culpability, the two individual defendants could not have been so prosecuted.
HUGHES LJ, giving the judgment of the court, said that the appeal raised questions about the criminal liability of an unincorporated association and its individual members. The offence charged was one of strict liability, created under s 85(1) of the Water Resources Act 1991, which provided that a person contravened the section if he caused any polluting matter to enter any controlled waters. Maintaining the tank caused the pollution. The argument revolved around whether in reading s 85 of the 1991 Act, the “contrary intention” appeared within the meaning of s 5 of the Interpretation Act 1978, so that the Schedule 1 definition of “person” did not apply. Although several statutes made provision for the criminal liability of unincorporated associations, they varied so greatly that no settled policy could be discerned from them. There was no general proposition that there was a form of enactment which was to be expected if an unincorporated association was to be criminally liable, or of which the absence signalled a contrary intention for the purposes of s 5 of the 1978 Act. Sections 76 and 77 of the Health Act 2006 provided the most comprehensive forms of provision, whereas other statutes contained only one or two specific provisions. It was the intention of Parliament that in those cases, an unincorporated association was capable of bearing criminal liability and the absence of a specific stipulation to that effect, did not carry the implication that an intention contrary to the 1978 Act’s definition was to be gathered. The potential procedural complications relied on by the Crown, did not justify the conclusion that an intention contrary to the 1978 Act’s definition was to be gathered from the absence of procedural provisions in the 1991 Act. Their Lordships knew of no reported case in which the question directly in point, was whether criminal liability depended wholly on the 1978 Act. The definition in the 1978 Act was of general application and to assert that a contrary intention appeared from the absence of a specific statutory provision, would deprive that definition of its generality. The prosecution of the club was permissible in law, the definition of “person” in the 1978 Act applied and no contrary intention appeared. Section 217(1) of the 1991 Act, on which the trial judge had rested his decision that whilst the club could be prosecuted the individuals could not in the absence of personal culpability, only contained an officers’ liability provision relating to the officers of a corporation, not an unincorporated association. Such an association was not the same as a company or other corporation.
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