The Court of Appeal has recently explored several issues surrounding the criminal liability of unincorporated associations in R v RL and JF [2008] EWCA Crim 1970, [2008] WLR (D) 299. The case concerned a prosecution under Section 85(1) of the Water Resources Act (1991), which provides that it is an offence of strict liability for a person to cause or knowingly commit any poisonous, noxious or polluting matter or any solid waste matter to enter controlled waters. The Court of Appeal held that a prosecution for the offence in Section 85(1) could be brought against an unincorporated association and its members. In the course of his composite judgment, Hughes LJ observed (para. [29]):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.
Note: the case is not yet available on BAILII but a summary has been provided here by the ICLR as part of its free WLR Daily service (this summary will be removed when the case is reported in one of the ICLR series of law reports).
The case contains dicta which is both disturbing and questionable: a classic example of judicial hubris. The decision that it is possible to prosecute (whether successfully or not) individual members is correct. It is the assumption (without analysis), e.g. at [3] and[33], that all members of the club were in the same position that is legally dubious. cf., for example, London Association for Protection of Trade v Greenlands [1916] 2 AC 14, at 39; Brown v Lewis (1896) 12 TLR 455.
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