R v RL and JF [2008] EWCA Crim 1970; [2008] WLR (D) 299
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Case No: 200800623 B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TAUNTON CROWN COURT
His Honour Judge Overend
T2007010
Royal Courts of Justice
Strand, London, WC2A 2LL
28/08/2008
B e f o r e :
LORD JUSTICE HUGHES
MR JUSTICE DAVID CLARKE
and
MR JUSTICE BLAIR
Between:
The Queen
Appellant
- and -
RL
-and-
JF
Respondents
(Transcript of the Handed Down Judgment of
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190 Fleet Street, London EC4A 2AG
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Mr G Lucie (instructed by The Environment Agency) for the The Crown
Mr N Fryer (instructed by Morgan Cole and CIP Solicitors) for the
Respondents
Hearing date : 22nd April 2008
Lord Justice Hughes :
This appeal by the Crown under section 58 Criminal Justice Act 2003
raises
questions relating to the criminal liability of an unincorporated
association
and of its individual members.
An underground pipe taking heating oil from its storage tank to the
boiler was
fractured when independent building contractors carried out work on
the ground
above. The heating oil escaped through the ground and some 1500 litres
or more
found its way into a nearby watercourse, polluting it. The land on
which tank,
boiler and pipe all lay was occupied by an unincorporated association,
namely a
members' golf club. The club also owned those several installations.
The Environment Agency initiated a prosecution against two members of
the club,
selected because at the time of the escape the first (L) was the club
chairman
and second (F) was both the club treasurer and also chairman of the
'special
building committee' which, within the club, oversaw the building work
in
question carried out by the contractors. By the time of the ruling by
the Judge
with which we are now concerned, the prosecution had abandoned any
allegation
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. The
club had 900
or so members. Any one or all of those members would have been in an
identical
legal position.
The offence charged was that created by section 85 of the Water
Resources Act
1991. That section provides as follows:
"(1) A person contravenes this section if he causes or knowingly
permits any
poisonous, noxious or polluting matter?.to enter any controlled
waters."
Here the charge was causing, rather than knowingly permitting.
Liability for
this offence is, if not absolute, extremely strict, notwithstanding
its
juxtaposition in the statute with the neighbouring offence of
knowingly
permitting. On the authority of the decision of the House of Lords in
Environment Agency (formerly National Rivers Authority) v Empress Car
Co (Abertillery)
Ltd [1999] 2 AC 22, and of other authorities there reviewed, it may be
committed
by maintaining a tank containing a polluting substance which escapes
into a
watercourse even if the immediate occasion of the escape is the
unforeseeable
act of a third party, providing that that intervening act can be
described as a
normal fact of life as distinct from an extraordinary and abnormal
event. Even
an intervening interference by a trespasser may lead to the criminal
responsibility of the tank owner. The decision in that case was that
in such
circumstances maintaining the tank causes the pollution.
By section 85(6) a person convicted on indictment of the offence is
liable to
imprisonment for up to two years and/or to a fine.
At 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:
(i) that the
golf club could have been prosecuted as an unincorporated association
for this
offence and (ii) that, at least in the absence of some personal
culpability, the
two individual defendants could not be so prosecuted.
Against that ruling, the Crown seeks leave to appeal. It complied at
the time
with the procedural requirements of section 58 Criminal Justice Act
2003, in
that it notified the Court under s 58(4) of its intention to appeal
and gave the
section 58(8) acquittal agreement. The Judge declined to give leave
himself,
taking the view that leave should be a matter for this court.
Does section 58 apply ?
The defendants submit that the Crown cannot appeal under section 58
because the
prosecution was not terminated; the Crown, it is said, could perfectly
well
bring a prosecution against the club as an unincorporated association,
for that
is what the Judge ruled could be done. Says Mr Fryer, the defendants
merely
asked the Judge for clarification of who could be prosecuted.
The argument based upon whether the ruling is a 'terminating' one is
in any
event misconceived. Such an expression does not appear anywhere in the
Act: see
R v Y [2008] EWCA Crim 10, at paragraph 20 and R v R [2008] EWCA Crim
370 at
paragraph 24. This ruling undoubtedly related to the count on the
indictment and
is a proper subject for appeal under section 58. As it happens, in the
present
instance the ruling did also terminate the case, although that is not
the test.
The only persons prosecuted on the indictment were these two
defendants and the
Judge ruled that in the absence of some personal culpability that
prosecution
could not succeed. That the Crown could (if his ruling be right) start
again
against the club would not mean that the prosecution which was in hand
survived.
We are quite satisfied that the Crown was entitled to invoke section
58. We are
also satisfied that the ruling raises one or more questions of law
which are
both arguable and suitable for consideration by this Court.
Accordingly we give
leave.
Unincorporated Associations
There are probably almost as many different types of unincorporated
association
as there are forms of human activity. This particular one was a club
with 900
odd members, substantial land, buildings and other assets, and it had
no doubt
stood as an entity in every sense except the legal for many years. But
the legal
description 'unincorporated association' applies equally to any
collection of
individuals linked by agreement into a group. Some may be solid and
permanent;
others may be fleeting, and/or without assets. A village football
team, with no
constitution and a casual fluctuating membership, meeting on a
Saturday morning
on a rented pitch, is an unincorporated association, but so are a
number of
learned societies with large fixed assets and detailed constitutional
structures.
So too is a fishing association and a trade union. And a partnership,
of which
there are hundreds of thousands, some very large indeed, is a
particular type of
unincorporated association, where the object of the association is the
carrying
on of business with a view to profit.
At common law, an unincorporated association is to be distinguished
from a
corporation, which has a legal personality separate from those who
have formed
it, or who manage it or belong to it. The most numerous species of
corporation
is the limited liability company, but there are of course other types,
such as
chartered professional associations, local government bodies and
indeed bishops.
At common law, as the Judge succinctly held, an unincorporated
association has
no legal identity separate from its members. It is simply a group of
individuals
linked together by contract. By contrast, the corporation, of whatever
type, is
a legal person separate from the natural persons connected with it.
This is an apparently simple legal dichotomy duly learned by every law
student
in his first year. But its simplicity is deceptive. It conceals a
significantly
more complicated factual and legal position.
As to fact, many unincorporated associations have in reality a
substantial
existence which is treated by all who deal with them as distinct from
the mere
sum of those who are for the time being members. Those who have
business
dealings with an unincorporated partnership of accountants, with
hundreds of
partners world-wide, do not generally regard themselves as contracting
with each
partner personally; they look to the partnership as if it were an
entity. The
same is true of those who have dealings with a learned society, or a
trade union,
or for that matter with a large established golf club. Frequently, as
Lord
Phillips CJ pointed out in R v W Stevenson & Sons [2008] EWCA Crim 273
(at
paragraph 23) third parties will simply not know whether the
organisation being
dealt with is a company or some form of unincorporated association.
As to the law, it no longer treats every unincorporated association as
simply a
collective expression for its members and has not done so for well
over a
hundred years. A great array of varying provisions has been made by
statute to
endow different unincorporated associations with many of the
characteristics of
legal personality. Examples selected at random include the following.
The
detailed special rules for partnerships contained in the Partnership
Act 1890
scrupulously preserve the personal joint and several liability of the
partners (see
sections 5-12), and the Law Commission recommendation in November 2003
that a
firm should have legal personality has not been implemented, but the
partnership
can sue or be sued in its firm name: see Civil Procedure Rules 7.2A
and 7PD5A.3,
repeating a rule which has existed for more than a century. A Trade
Union is, by
statute, not a corporation: Trade Union and Labour Relations
(Consolidation) Act
1992 section 10(1). But by the same section it can make contracts, sue
and be
sued in its own name, and commit a criminal offence. In the case of
learned
societies and institutions, their property (if not vested in trustees)
is by
section 20 of the Literary and Scientific Institutions Act 1854 vested
in their
Governing Body, albeit that neither the institution nor the governing
body is a
corporation. Nor are these developments confined to the statutory. As
long ago
as 1901 the House of Lords held in Taff Vale Railway v Amalgamated
Society of
Railway Servants [1901] AC 426 that a trade union (unincorporated)
could be sued
in its own name despite the absence of any statutory provision
permitting it.
Lord Lindley observed (at 442) that the problem of how to adapt legal
proceedings to unincorporated societies consisting of many members was
by no
means new, and that the rules of common law had had to be altered to
meet them.
Those several examples relate largely to civil liability, but as will
be seen,
there is a similar variety of provision dealing with criminal
liability in the
case of unincorporated associations.
The Judge's first decision; Interpretation Act 1978.
By section 5 of the Interpretation Act 1978:
"In any Act, unless the contrary intention appears, words and
expressions listed
in Schedule 1 to this Act are to be construed according to that
Schedule."
Schedule 1 contains a long list of definitions. Amongst them appears
the
following:
"'Person' includes a body of persons corporate or unincorporate.
(1889)"
The relevance of the bracketed date, 1889, is explained by Schedule 2,
paragraph
4(1)(a). It means that the definition applies to the word 'person' in
any Act
passed after that year. That is because the same definition of
'person'
previously appeared in section 19 of the Interpretation Act 1889.
The Judge rested his first decision, that the golf club could be
prosecuted in
its own name, upon this statutory definition. He held that the club
was, by this
definition, a 'person' for the purposes of the offence-creating
section, s 85 of
the Water Resources Act (for which see paragraph 4 above).
We should mention Schedule 2, paragraph 4(5) of the Interpretation Act
1978.
That provides:
"The definition of 'person' so far as it includes bodies corporate,
applies to
any provision of an Act whenever passed relating to an offence
punishable on
indictment or on summary conviction."
The explanation for that paragraph is this. The 1889 Act had treated
corporations differently from unincorporated associations to this
extent. It had
stipulated by section 2 that 'person' included corporations, for the
purpose of
criminal liability, whenever the statute creating the offence was
passed. By
contrast, the inclusion of unincorporated associations in the word
'person' by
section 19 of that Act was (a) general and not limited to criminal
offences and
(b) applied only to Acts passed after 1889. This distinction is
faithfully
preserved in the 1978 Act. Schedule 2 of the 1978 Act deals with the
application
of definitions to pre-existing statutes. It follows that paragraph 4
(5) is of no
assistance in construing the breadth of the definition of 'person' in
Schedule 1.
That was also the view taken by the Divisional Court in R v Clerk to
Croydon
Justices ex p Chief Constable of Kent (1989) 154 JP 118.
The argument before us has revolved, correctly, around the question
whether in
reading section 85 of the Water Resources Act, the "contrary intention
appears"
within the meaning of section 5 of the 1978 Act, so that the Schedule
1
definition of 'person' does not apply.
Contrary Intention ?
The Crown submits that the Water Resources Act demonstrates such a
contrary
intention, viz that 'person' in section 85 does not include an
unincorporated
association, because the Act does not contain a specific provision
making such
an association criminally responsible in its own name. In the absence
of such a
specific provision, says the Crown, the ordinary common law principle
that an
unincorporated association is no more than a collective noun for its
members
must prevail. There are, it is suggested, too many practical
difficulties in the
Judge's decision to the contrary. In particular, this Act does not, we
are
reminded, contain any provision for adapting the procedure of the
courts to a
non-natural person, so that there would be difficulties, it is
suggested, in
taking a plea, or in committing the association to the Crown Court for
trial, or
in enforcement of a penalty if convicted.
Specific statutory provisions for criminal liability of
unincorporated
associations
Notwithstanding the generality of the definition in Schedule 1 to the
Interpretation Act, there is no doubt that several statutes do make
specific
provision for the criminal liability of unincorporated associations.
However, on
inspection, these provisions vary so greatly that there is no settled
policy
which can be discerned from them, and we find it 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 purposes of
section 5 of
the Interpretation Act.
The most comprehensive form of provision is to be found in sections 76
and 77 of
the Health Act 2006. We take section 77 first. It provides as
follows:
"77. Offences committed by partnerships and other unincorporated
associations
(1) Proceedings for an offence alleged to have been committed by a
partnership
shall be brought in the name of the partnership (and not in that of
any of the
partners).
(2) Proceedings for an offence alleged to have been committed by an
unincorporated association (other than a partnership) shall be brought
in the
name of the association (and not in that of any of its members).
(3) Rules of court relating to the service of documents shall have
effect as if
the partnership or unincorporated association where a body corporate.
(4) In proceedings for an offence brought against a partnership or an
unincorporated association, the following provisions apply as they
apply in
relation to a body corporate ?
(a) section 33 of the Criminal Justice Act 1925 (c 86) and Schedule 3
to the
Magistrates Courts Act 1980 (c 43)
?..[Scotland and Northern Ireland]?
(5) A fine imposed on a partnership on its conviction for an offence
is to be
paid out of the partnership assets.
(6) A fine imposed on an unincorporated association on its conviction
for an
offence is to be paid out of the funds of the association."
Additionally, section 76 contains a number of clauses which extend
criminal
liability to individuals in cases of personal culpability ("officers'
liability
clauses"). Subsection (6) demonstrates their form:
"(6) If an offence committed by an unincorporated association (other
than a
partnership) is proved ?
(a) to have been committed with the consent or connivance of an
officer of the
association or a member of its governing body, or
(b) to be attributable to any neglect on the part of such an officer
or member,
the officer or member as well as the association is guilty of the
offence and
liable to be proceeded against and punished accordingly."
Substantially identical provisions are contained in the other
subsections of
section 76 to provide for the cases of officers of bodies corporate,
and of
partners.
It can thus be seen that the Health Act contains five different
provisions
relating to the case of criminal liability of an unincorporated
association:
i) stipulating that the association shall be prosecuted in its own
name and that
the members shall not be prosecuted;
ii) limiting the criminal liability of members to cases where they
have personal
culpability ("officers' liability clauses");
iii) making any fine payable from the funds of the association, as
distinct from
those of any member personally;
iv) providing for the rules of service applicable to corporations to
be adapted
to unincorporated associations; and
v) applying section 33 Criminal Justice Act 1925 and Schedule 3
Magistrates
Courts Act 1980, which are provisions for the taking of pleas, the
conduct of
mode of trial proceedings, committal for trial and the like, where a
defendant
is a corporation.
If, however, one inspects other statutory provisions relating to the
criminal
liability of unincorporated associations, one finds that many contain
only some,
and some contain only one, of these specific provisions. Several omit
one or
both of provisions (iii) and (iv); for example s 98 Banking Act 1987,
s 403(2)
Financial Services Act 2000, s 143 Adoption of Children Act 2002, s
285
Copyright, Designs and Patents Act 1988 and s 153 Political Parties
etc Act 2000.
More fundamentally, some simply assume that the association is
criminally liable,
by containing an officers' liability clause (type (ii)), but have none
of the
other provisions at all; for example sections 75, 92 and 179
Representation of
the People Act 1983, section 108 Friendly Societies Act 1992 and
Schedule 6
paragraph 8 Terrorism Act 2000. It is plainly the intention of
Parliament that
in these cases an unincorporated association is capable of bearing
criminal
liability, and it follows that the absence of a specific stipulation
to that
effect does not carry the implication that an intention contrary to
the
Interpretation Act's definition is to be gathered. Even in a statute
containing
the whole gamut of provisions, such as the Health Act, the type (i)
provision
involves an assumption that an unincorporated body is capable of
committing an
offence, possibly on the basis of the Interpretation Act.
In R v W Stevenson & Sons [2008] EWCA Crim 273 this court considered
the
criminal liability of a partnership under the Sea Fishing (Enforcement
of
Community Control Measures) Order 2000. The offence was a strict
liability
offence, created in aid of quota enforcement, of failing to submit a
sales note
showing the quantities and price of fish sold. Paragraph 11 of the
order
contained separate officers' liability clauses for each of (a) a
corporation, (b)
a partnership and (c) any other unincorporated association. That was
held
clearly to contemplate that the unincorporated association (including
the
partnership there in question) could be prosecuted and bear criminal
liability.
But apart from those type (ii) provisions, none of the other species
of
provision listed above in paragraph 24 had been enacted. There was no
specific
provision that an association could be liable in crime. There were no
procedural
provisions at all. It was held that the partnership was indeed
criminally
responsible, as in that case the Crown had asserted. This court held
that the
absence of procedural provisions did not carry the contrary intention.
It
considered that it necessarily followed from the fact that the
partnership could
be prosecuted that, when it was, any fine imposed could only be
enforced against
the assets of the partnership and not against those of individual
partners.
Likewise, it held that where the partnership was prosecuted, the
individual
partners were not 'offenders' for the purpose of any confiscation
proceedings.
It accepted that there might in some cases be complications as to the
authority
to enter pleas if the partners were in disagreement, but it was wholly
satisfied
that in the absence of such problem (internal to the partnership in
any event)
the pleas entered by counsel on behalf of the partnership had been
perfectly
properly entered.
That decision clearly shows that the potential procedural
complications relied
upon by the Crown in this case do not justify the conclusion that an
intention
contrary to the Interpretation Act's definition is to be gathered from
the
absence of procedural provisions in the Water Resources Act. The same
is shown,
as it seems to us, by the absence of such procedural provisions in
several other
statutes which can only contemplate the criminal liability of an
unincorporated
association, including a partnership. It is true that in Stevenson the
presence
of the officers' liability clause meant that the court did not have to
consider
the case where such criminal liability depends wholly on the
Interpretation Act.
Like that court, we know of no reported case in which that question
has been
directly in point, although it does not follow that prosecutions have
not been
brought against unincorporated associations, and they may well have
been.
We were referred to two cases where the Interpretation Act was
considered. In
Davey v Shawcroft [1948] 1 All ER 827 Lord Goddard CJ held that
section 19 of
the Interpretation Act 1889 (as to which see paragraph 17 above) meant
that an
unincorporated committee could be a licensed person for regulatory
purposes
under the Coal Distribution Order. He referred in passing to the
proposition
that if a partnership were to be prosecuted the partners ought to be
the
defendants personally, but this was incidental to the decision in the
case,
which was that an agent of the committee, who was personally
responsible for a
breach of the licence terms, was properly convicted. The court did not
have to
decide the question which we must address. Meanwhile, in R v Clerk to
Croydon
Justices ex p Chief Constable of Kent the Divisional Court held that
a
partnership or unincorporated association could be registered as a
fine
defaulter if it failed to pay a fixed penalty arising from its
ownership of a
motor vehicle; that was because the statutory definition of defaulter
depended
on the use of the words 'any person', and thus the Interpretation Act
applied to
it. The facts of that case demonstrate that an unincorporated
association is
accepted as registered keeper of a vehicle, and thus may well be
guilty of a
criminal offence relating to such a vehicle, whilst the decision shows
that the
liability of an association to a criminal penalty is contemplated. We
should,
however, record, that in giving the judgment of the court, Glidewell
LJ adverted
to possible complications of enforcement. It follows that neither case
decides
the point before us.
The present is an environmental offence of strict liability, in effect
making
the landowner criminally responsible if his tank leaks. The natural
defendant is
the landowner. In this case, that is, in any ordinary language, the
club rather
than its 900 or more members as they were on the day of the escape of
oil,
excluding any one who has joined since but including anyone who has
subsequently
left or died. The means of a defendant are directly relevant to fixing
the fine
on conviction. In this case, it makes little sense to take into
account the
personal means of the two proposed defendants, whether they are very
wealthy or
very impecunious; plainly what ought to be relevant are the assets and
financial
position of the club. We were told that the Crown accepted both these
propositions and would have been more than content to prosecute the
club as an
association if it had felt legally entitled to do so. It should also
not be
forgotten that a criminal conviction, even if for an offence of strict
liability
such as this, is a matter of some moment for any individual convicted.
The
chairman and treasurer of this club would, as a result of conviction,
bear
criminal records which they would have to disclose on numerous
occasions, for
example in any application for any kind of insurance. Whether or not
it be true
that the presence of differing kinds of statutory provision in some
Acts has
inhibited the prosecution of unincorporated associations in their
absence, the
definition in the Interpretation Act is of general application. To
assert that a
contrary intention appears from the absence of a specific statutory
provision
amounts to depriving that definition of its generality. We conclude
that the
judge was right in his first decision. The prosecution of the club
was
permissible in law. The definition of 'person' in the Interpretation
Act 1978
applied and no contrary intention appeared.
In that conclusion, we confine ourselves to the particular offence
which we are
considering. In particular we do not for a moment consider any offence
which
involves any element of mens rea, which would be likely to raise quite
different
questions because of the personal and individual nature of a guilty
mind. In
such a case, it may well be that a contrary intention appears.
Attorney-General
v Able [1984] 1 All ER 277, to which we were referred, was a case in
which the
point which we have had to consider was not in any manner argued, and
the
Interpretation Act was not mentioned. It is, however, not in the
least
surprising that Woolf J dealt with it on the assumed basis that "it
must be
remembered that the [Voluntary Euthaniasia] society is an
unincorporated body
and there can be no question of the society committing the offence",
when that
offence was of intentionally aiding, abetting, counselling or
procuring the
suicide of another, thus involving mens rea and indeed punishable with
up to 14
years imprisonment. For the same reasons, we say nothing about common
law
offences.
The Judge's second decision; the officers' liability clause
The Judge's second decision was that whilst the club could be
prosecuted, the
individual members of it could not be, in the absence of personal
culpability.
He rested that decision on section 217(1) of the Water Resources Act.
That
section contains what we have called an officers' liability provision
but it
relates only to the officers of a corporation. The section provides:
"Where a body corporate is guilty of an offence under this Act?.and
that offence
is proved to have been committed with the consent or connivance of, or
to be
attributable to any neglect on the part of, any director, manager,
secretary or
other similar officer of the body corporate or any person who was
purporting to
act in any such capacity, then he, as well as the body corporate,
shall be
guilty of that offence and shall be liable to be proceeded against and
punished
accordingly."
There is, in this Act, no officers' liability provision affecting an
unincorporated association. If there had been, it is accepted that
neither the
chairman nor the treasurer would have fallen within its terms, because
there was,
by the time of the trial, no suggestion that either had consented, or
connived
at, the leakage, nor that either was in any manner negligent or
otherwise
culpable.
The Judge concluded that there was no reason why the criminal
liability of
officers of unincorporated associations should be greater than that of
their
counterparts in a corporation, and that Parliament cannot have
intended that it
should. In effect, he read into the statute an equivalent of section
217(1)
applicable to the officers of this club.
In this the Judge went further than he was entitled to go. It is one
thing to
say that Parliament ought to have included a further provision in the
statute,
but it is quite another to re-write the Act as if it had. The
Interpretation Act
contains no justification for such an insertion. Nor do we think that
it is
correct to say that there is no reason why the criminal liability of
officers (or
members) of an unincorporated association should exist on a basis
different to
that of the officers of a corporation. Although many statutes make it
possible
to prosecute an unincorporated association, and although we have held
that this
is perfectly possible under section 85 Water Resources Act, it does
not follow
that such an association is for all purposes the same as a company or
other
corporation. It is not. A corporation has, for all legal purposes,
independent
legal personality. It is also regulated, often heavily. It must have
a
registered address and registered directors and secretary. An
unincorporated
association may indeed look very like a corporation in some cases, and
it may
have standing and de facto independence, but equally it may not. A
prosecution
which could only be brought against an informal grouping of building
workers, or
sportsmen, or campaigners would be likely to be wholly ineffective. 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. In the present case, the 900-odd members of
the club
were indeed all maintainers of the tank and, on the law as explained
in Empress
Car Co all guilty of the strict liability offence of causing the
leakage.
This is not vicarious liability for the offence of the club, as was
suggested in
argument before the Judge. Vicarious liability, when it exists, arises
out of
the employment by the defendant of another person to act for him.
There is no
sense in which the chairman, treasurer, or any other member of this
club
employed the club to do anything for them. The criminal liability of
the members
of the club, including the chairman and the treasurer, is primary
liability, not
vicarious liability. It arises because, as Empress Car Co holds, each
person
jointly maintains the tank and has thus caused the leak.
It follows that the correct position under section 85 of the Water
Resources Act
1991 is that a prosecution for the strict liability offence of causing
polluting
matter to enter controlled waters may be brought, on the facts of this
case,
against either the club in its own name, or against individual
members. It is
for the Crown in any 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. No doubt 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. We have heard no
argument on
whether in exceptional circumstances it could be permissible for the
Crown to
seek to proceed against both the club and individuals, but there are
no such
exceptional circumstances here.
Order
The consequence of this is that this appeal must be allowed in part.
The Judge
was correct in his first decision but erred in his second. Insofar as
he ruled
that the individual defendants could not be prosecuted, he fell into
error.
As we have said, the Crown accepts in this case that if it is
permitted to
proceed against the club that is the correct course to take. We agree.
It
follows that whilst we allow the appeal in part, it is not in the
interests of
justice to order under section 61(4)(b) of the Criminal Justice Act
2003 that a
fresh trial of the defendants take place: see section 61(5). The
consequence is,
as provided for by those subsections, that we direct their acquittal.
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1970.html
muggle...@googlemail.com
I do not want to belong to any club that will accept me as a member -
criminal liability for members of unincorporated associations
Groucho Marx may have been wiser than he is given credit for: in a
ruling earlier this year (R v RL. JF [2008] EWCA Cr/rn 1970), the
Court of Appeal held that individual members of unincorporated
associations can be prosecuted for criminal offences. That may sound
very remote to most people but more organisations take the legal form
of an unincorporated association than is often realised. It could be
the local football team you play for on a Saturday, the expensive golf
club you have just joined or the local amateur dramatic society. In
short, almost any collection of people which is not a company or some
form of partnership is an unincorporated association. It does not need
to be in existence to make a profit.
Just in case you think it unlikely that your golf club would ever
commit a criminal offence, think again: that is just what a golf club
was held to have done when the builders it employed punctured an oil
tank, allowing 1,500 litres of oil to leak into a nearby watercourse.
Environmental offences are just one of a new breed of offences which
can catch you unawares. The offence here was an offence of strict
liability, which means that whoever keeps the oil tank is guilty of a
criminal offence if oil escapes, whether or not they did anything to
cause the leak. It was a sub-committee of the golf club which employed
the builders and it was accepted in the trial and on appeal that none
of the members was personally to blame for what had happened: nor
indeed had any of them done anything beyond being a member of the club
which maintained the tank.
The Crown preferred to prosecute the club rather than its members, but
it had started proceedings against two of the representative members
in the belief that it could not actually prosecute the club itself.
Once the Court of Appeal confirmed it could do so, it took no further
action against the two members, who were then acquitted. The court
went further, though, and held that the Crown could prosecute not only
the club but also any of its 900 individual members. It would be up to
the Crown to decide who the defendants should be and the court would
only intervene in very limited cases of oppression involving an abuse
of process.
The court also went to some length to set out why, in its view, the
liability of members of an unincorporated association had to be
different from that of members of a company. It is precisely because
they are different types of legal entity, and it is "a necessary
consequence of the different nature of an incorporated association
that all its members remain jointly and severally liable for its acts
done within their authority".
On a practical level, this means that, if you want the benefits of an
unincorporated association (less formality, lower costs, less
administration and regulation), you need to face up to the
disadvantages, broadly in this case potential personal liability for
criminal offences you knew nothing about and were not involved with,
where you were, as the court said, 'not personally culpable".
So - what do you do now? You can draw some comfort from the fact that
the Crown only wanted to prosecute the club rather than its members,
and that is likely to be the case in most instances where the club has
sufficient assets to satisfy any fine or carry out any remedial work.
In addition, the Crown would probably prefer not to be seen
persecuting lawabiding citizens who have done nothing to make
themselves 'personally culpable".
Subject to the caveat that directors and other officers of a corporate
can be prosecuted personally for an offence committed by the
corporate, an alternative is to try to convince your unincorporated
association to change its status - if it were to incorporate (for
example as a company or LLP), its members would have limited
liability, any losses being limited to the financial realm, from the
loss of your investment in the company if it is unable to pay its
creditors. The disadvantages to incorporation, however, are that the
structure of the association would need to be much more formal in
future, returns would need to be submitted to Companies House, the
accounts rules would be much stricter and generally there would be
more administration and expense involved. If your unincorporated
association does not wish to switch, you could consider joining an
alternative one which has already incorporated.
Failing that, you could just live dangerously in the hope that your
unincorporated association will not unwittingly be committing a
criminal act. Unfortunately, insurance is only a partial answer: as a
matter of public policy, you can't insure against a conviction, though
you can cover your defence costs to try to stave off a conviction (and
directors' and officers' cover exists for that very purpose). Perhaps
most critically, there is no insurance policy that can ensure that a
convicted member would not need to disclose that conviction on all
manner of documents (including for example immigration documents on
entering certain countries) in the future.
Macfarlanes LLP 20 Cursitor Street London EC4A 1 LT