Land – Controlled water – Environment Agency – Heating oil escaping from land occupied by unincorporated association polluting controlled water – Environment Agency prosecuting respondent members – Judge ruling respondents not liable in absence of personal culpability – Whether judge erring in law – Appeal allowed in part
The respondents were members of a golf club. The club was an unincorporated association with around 900 members, which occupied land through which ran an underground pipe that took heating oil from a storage tank to a boiler. The pipe had been fractured by independent contractors carrying out work above ground; the fracture caused oil to escape through the ground, polluting a nearby watercourse.
The Environment Agency, on behalf of the Crown, initiated a prosecution against the club chairman (the first respondent) and the treasurer (the second respondent), who was also the chairman of the special building committee that, within the club, had overseen the work in question. They were charged with causing a poisonous, noxious or polluting matter to enter controlled waters in breach of section 85 of the Water Resources Act 1991. At the start of the trial, the respondents applied to quash the indictment.
The judge ruled in the respondents’ favour, holding that although the golf club could have been prosecuted as an unincorporated association, the respondents should not, in the absence of personal culpability, have been so prosecuted. Referring to section 217(1) of the 1991 Act, the judge concluded, inter alia, that there was no reason why the criminal liability of officers of an unincorporated association should be greater than that of their counterparts in a corporation, and parliament could not have intended such a result.
By the time of the judge’s ruling, the prosecution had abandoned allegations that either respondent was personally culpable in any manner or had done anything to make him criminally liable beyond being a member of the club that maintained the tank and pipe. The Crown appealed under section 58 of the Criminal Justice Act 2003.
Held: The appeal was allowed in part.
In all the circumstances, the judge was correct to conclude that it was permissible in law to prosecute the club. The offence charged was a strict liability environmental offence that made the landowner criminally responsible. Unincorporated bodies were expressly included in the definition of “person” by Schedule 1 to the Interpretation Act 1978, which was of general application. However, an unincorporated association was not simply a collective expression for its members.
It was clearly the intention of parliament that an unincorporated association could be capable of criminal liability. In ordinary language, the natural defendant was the club, as landowner, rather than the club members.
However, the judge had gone further than he was entitled to go in saying that there was no reason why the criminal liability of the officers or members of an unincorporated association should be on a different basis than that of the officers of a corporation. Although an unincorporated association could be prosecuted under section 85 of the 1991 Act, such an association was not for all purposes the same as a company or other corporation. It was a necessary consequence of the different nature of an unincorporated association that all its members remained jointly and severally liable for actions carried out within its authority: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd) [1999] 2 AC 22 considered.
It followed that the correct position was that, under section 85, a prosecution for the strict liability offence could have been brought on the facts against either the club in its own name or against individual members. It was for the Crown in any individual case to determine whom it sought to prosecute. The court would interfere only in the very limited case of oppression involving abuse of process.
However, since the Crown had accepted that proceeding against the club would be the correct course to take, it would not be in the interests of justice to order a fresh trial against the respondents, and the court would direct their acquittal.
Gary Lucie (instructed by the Environment Agency) appeared for the Crown; Nigel Fryer (instructed by Morgan Cole and CIP Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
