An Unincorporated Association is an association or a body of persons that is not a corporation. An example is a sports or social club where the members contribute funds out of which the club expenses are paid. An unincorporated association has no legal personality at common law and therefore could not incur criminal liability, though its individual members could. However, the Interpretation Act 1978, SS 5 and 11 and schedule 1, defines the word "person" in any Act or subordinate legislation to include, unless the contrary intention appears, "a body of persons corporate or incorporate". This provision applies, as far as unincorporated bodies are concerned, to Acts whenever passed and regulations subordinate to such Acts made since 1889. Unincorporated associations are therefore "persons" and liable to be convicted of any offence where the definition uses the word person. This would include section 4, HSWA.
Unincorporated bodies may be employers, and as such would be liable for offences that use the definition ‘employer’. Their employees and others can be liable under HSWA SS 7,8 and 36. S.37(2) is not available in the case of unincorporated bodies.
When recommending prosecution of an unincorporated body, you should generally recommend prosecution in the name of the association together with the office bearers or a sufficient number of members to defend the association's interest. Proceedings against a registered club can be taken against its office bearers, as such office bearers and not as individuals.
Trusts should be prosecuted in the names of all the trustees, specifying that they are trustees of particular property (e.g. " [name of each trustee] as trustees of X trust"). This form of description makes it clear that the charges relate to the trustees collectively and only in their capacity as trustees.
In Scotland the supervision and regulation of charities is governed by Part 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. In terms of that Act only a body recognised as a charity by the Inland Revenue may hold itself out as a charity and the Inland Revenue maintains a public index of those bodies which are recognised as charitable.
If the charity is a company it will be registered with Companies House and you should treat it as a company. When trustees have been incorporated, they form a "body" which may be prosecuted in its corporate name. If trustees have not been incorporated, they should be prosecuted in the name of the trustees.
Work activities by religious institutions will be subject to HSWA but particular care must be taken in identifying the duty holder. Different activities by a church will each have to be considered separately, for example the church may be the employer of persons working in a care home operated by the church but will not be the employer of a minister conducting religious services.
In the latter case the minister is an office holder, not an employee and the persons in control of the premises such as the church and associated manse is likely to be the local congregation.
Therefore, Inspectors considering enforcement action against any church body should seek specific advice on a case-by-case basis.
Young persons and children
No child under the age of 8 according to Scots law can be guilty of any criminal offence. Children under the age of 16 can only be prosecuted for an offence on the instructions or at the instance of the Lord Advocate, and then only in the High Court or the Sheriff Court. The guidelines in relation to the interviewing of child witnesses should be followed when interviewing potential accused who are children, although such instances will be extremely rare.
There are general statutory restrictions in place to prevent the reporting and publication of alleged offences or criminal proceedings which could reveal the identity of a person under 18 years of age. 1 The restrictions apply to press releases and publicly accessible databases (e.g. the HSE prosecutions database). The identity of a young person or child should therefore not appear in the public domain (whether they are an offender or witness).
Information held on the HSE prosecution database must also comply with the Rehabilitation of Offenders Act 1974. If a person under the age of 18 is convicted of an offence, the inspector must advise FOD OSU2 (Legal and Enforcement) in writing, so that their name is not published, and so that the entry on the database can be deleted when necessary.
1. Youth Justice and Criminal Evidence Act 1999, s.44,45,52. Back