Thousands of organisations, such as residents’ associations, car-sharing groups and many others, are set up as informal unincorporated associations and many people might consider it an honour to be invited to join, or accept a place on the committee of a local club or organisation. Before accepting such an invitation, however, you would be wise to give the matter serious thought...

When such clubs and associations are run as unincorporated entities, often by a committee of responsible people, a member may feel at ease knowing that insurance arrangements are in place. Although committee members are more likely to be in the firing line, even ordinary members might find that there are circumstances in which they may be held personally liable for damages., or even face criminal prosecution.

A recent Court of Appeal ruling, which dealt with just such a situation will send a shiver down the spines of the members of unincorporated associations throughout the land.

In the case in point, the chairman and treasurer of a golf club were prosecuted under the Water Resources Act 1991 when the club’s boiler was punctured and oil leaked out, polluting a nearby watercourse. The offence concerned is what is called a ‘strict liability’ offence, meaning conviction will occur if the fact of the pollution is proven. It carries a maximum sentence of two years imprisonment and a fine.

The golf club officials were not to blame for the oil leak – their sole connection with the incident was to be members of the club and its committee when the offence occurred.

The Court of Appeal decided that ANY of the club’s 900 members could have been prosecuted for the offence. It was up to the Crown to decide whom to charge. In this case, because there was no separate legal ‘personality’, the charge was made against individual members. Had the club been incorporated, the criminal charge would have been made against the company, as a company is, in law, a separate legal entity from its members.

The ruling gives the Crown the green light, when a crime has been committed, to prosecute any or all members of the responsible association (within reason). This is particularly important where the crime is one of strict liability, as in such cases proof that the offence was committed is sufficient to lead to a conviction – the questions of mitigation or knowledge of the act are not applicable. Many criminal acts as defined in environmental law are ‘strict liability’ offences.