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R. v RL & Anor.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Aug 28, 2008
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Hughes
Clarke
Blair.
Reference number
[2008] EWCA Crim 1970
Language
English
Subject
Water, Legal questions
Keyword
Offences/penalties Water quality standards Freshwater quality/freshwater pollution Enforcement/compliance Liability/compensation
Abstract
The present appeal centered on the question of criminal liability of members of an unincorporated association under section 85 of the the Water Resources Act 1991. A members’ golf club, in law an unincorporated association, owned buildings served by a heating oil storage tank via an underground pipe. In the course of construction work the pipe was severed and a watercourse was polluted. An offence under section 85 of the Water Resources Act 1991 of polluting controlled waters had thus potentially been committed. The Environment Agency reluctantly took the view that the club itself could not be prosecuted, not being a ‘person’ within the meaning of section 85, and thus initiated a prosecution of the club chairman and the club treasurer (being also the chairman of the building committee which oversaw the work) but accepted that neither had personal culpability greater than any other member. Neither absence of culpability nor the act of a third party generally afford any defence and certainly afforded none on the facts of this case. Nevertheless, the Crown Court quashed the indictment holding, first, that the Environment Agency could and should have prosecuted the club and, secondly, that individual defendants could not be prosecuted in the absence of culpability, by extension by analogy of section 217(1) of the Water Resources Act 1991, which created ‘officers’ liability’ by officers of bodies corporate but only in the case of personal neglect The Crown appealed to the Court of Appeal the issues being, first, could the club be prosecuted as a ‘person’ within the meaning of section 85 and, secondly, could individual members of the club also be prosecuted? The Court of Appeal allowed the prosecution’s appeal in part. It held that the club (as well as each of its members) could have been prosecuted and was indeed ‘the natural defendant’. The definition of ‘person’ in the Interpretation Act 1978 as including an unincorporated association applied unless a ‘contrary intention’ was to be found in section 85 and none was; indeed, it would make little sense to take into account in fixing any fine the assets of any individual members of a club rather than those of the club and prosecution of individuals would potentially be unfair upon them. Nevertheless, the Crown Court’s extension by analogy of section 217(1) was unwarranted and amounted to rewriting the Act; every one of the then members of the club was in law also guilty of the strict liability offence of causing the leak since all were maintainers of the tank and each could in theory have been prosecuted and convicted. Who to prosecute in any given case was a matter for the crown, subject only to considerations of abuse of process which were not applicable here. The judge below had wrongly held that the chairman and treasurer could not be prosecuted.
Full text
COU-156653.pdf