Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
There is a wide range of environmental offences. It has been demonstrated that these range “from breaches of IPPC permits for industrial processes, through health and safety offences, to wildlife crimes involving the illegal trade of endangered species“. This assignment will take an overview of the criminal activities that take place in the arena of environmental law and assess the sanctions that are imposed. It will consider whether or not the appropriate sanctions are given to the relevant offences or whether or not environmental law sanctions are unduly lenient. The civil law approach will be considered in some detail as an alternative and as a more effective way of reprimanding those who continuously breach environmental law. It will be concluded that this is perhaps the best way forward and the most efficient and perhaps most appropriate way to deal with these kinds of offences.
Mens Rea or Strict Liability?
Some environmental offences require proof of a defendant’s mens rea in order for him to be found guilty, but that on many occasions, where the charge is one merely of having “caused” the prohibited act, liability is strict. This strict liability nature of a number of environmental offences has exercised the minds of the higher courts on numerous occasions.
Strict liability offences mean that the task of securing a conviction is much easier as only proof that the defendant did the relevant act is necessary and there is no need to prove his mental state, although it may be a factor to be considered either by the prosecution when exercising its discretion whether or not to prosecute, or by the court when determining sentence when it can act as either a mitigating or aggravating factor. As Cartwright points out “empirical research shows that the use of discretion by enforcement agencies is important in countering any potential harshness in strict liability.”
Although such a “due diligence” defence is patently not available in respect of the offences under s.85 of the Water Resources Act 1991, this is not true of all environmental offences. Thus, for example, it is a defence for a person charged with an offence contrary to s.33 of the Environmental Protection Act 1990 (prohibition on unauthorised or harmful deposit, treatment or disposal, etc. of waste) to prove that “he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence“.
Strict liability offences now account for over half of the 8,000 offences in English criminal law but it is notable that many, including environmental offences, have often come to be regarded by the criminal courts as something other than “true” crimes. Thus in one of the leading cases in this area, Alphacell Ltd v Woodward, Viscount Dilhorne applied the words of Wright J. in Sherras v De Rutzen to suggest that the water pollution offences “are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty“. These views were subsequently endorsed by Lord Taylor C.J. in Attorney-General’s Reference (No.1 of 1994).
The view that environmental offences are sometimes not truly criminal in nature but are instead at best quasi-crimes has manifested itself in the sentences imposed by the courts. The often contradictory messages sent out by the courts when passing sentences for strict liability offences have been identified by one commentator as follows:
“In some cases the courts say that strict liability is appropriate for minor offences which are not truly criminal. Yet they also seem to hold …that [strict liability] is appropriate where offences relate to public safety or social concern and severe penalties have been imposed“.
Fines – The Only Sanction?
It is first important to look at the findings of Hatton who undertook a review of the environmental law procedures and found that nearly two-thirds of respondents are not satisfied with the Courts’ understanding of environmental issues. A number of practitioners perceived understanding to be variable and dependent upon the judge drawn. Many practitioners, including have found, with notable exceptions, a lack of comprehension of (and/or sympathy with) central tenets of environmental law such as the precautionary principle and sustainable development, as well as the relationship between EC and domestic law in this area. By way of contrast, a senior judge defended the Courts’ record on environmental cases, observing that cases are allocated to judges with appropriate expertise and a thorough grasp of environmental principles. In his view, the demonstrably poor success rates associated with environmental cases are largely due to the absence of a merits-based review, and the fact that a proportion of them are simply ‘poor cases and therefore do not have sufficient merits in any event’.
Over a quarter of respondents (26 per cent) were concerned about the limited scope of judicial review. The Royal Society for the Protection of Birds (RSPB) notes that most environmental cases concern the interpretation of scientific facts (i.e. are essentially merits-based) and, as such, are outside the scope of the Courts. As the Courts are reluctant to quash a decision unless it is totally and utterly unreasonable, there seems to be ‘no middle ground for decisions that are simply poor decisions’. One consequence of this is that claimants often disguise merits-based claims as procedural challenges – an observation reinforced by a study performed by University College London. UCL examined 55 environmental judicial reviews (from an estimated 60-70 which arose during the last three years) and found that two-thirds of them were essentially merits-driven, i.e. seeking a substantial rehearing of the facts.
In judicial review, the Courts are not considering challenges to the merits of the decision, but rather whether it is a decision the body is entitled to make. In reality, this often means the executive body is forced to go back and rectify procedural errors, but ultimately makes the same decision. As such, in many cases, judicial review does not change the final outcome – it merely delays it. This distinction is not always understood by applicants, and can lead to frustration.
The EJP’s attention was drawn to the argument that substantive legality is covered by the doctrines of, amongst other things, ultra vires and Wednesbury unreasonableness as well as, increasingly, of proportionality etc. However, WWF supports the RSPB’s view that Wednesbury unreasonableness no longer appears to exist as a ground for review. In its experience, Counsel has advised that a decision has to be not just unreasonable but ‘fantastic in the true sense of the word’ before it provides a potential ground for review before the Courts and this therefore makes the threshold very high.
WWF raised the inability to challenge the merits of a decision (as opposed to an ability to challenge substantive legality) as a shortfall in the UK’s compliance with the Aarhus Convention. It suggested one possibility would be to lower the ‘hurdle’ on Wednesbury unreasonableness for cases falling under the Aarhus umbrella. As such, allegedly poor decisions on environmental facts could become challengeable.
In environmental terms the most useful remedy is an interim prohibitory injunction, which seeks to prevent a respondent from causing (further) environmental damage until a full hearing takes place. The main problem with interim injunctions is that they require the applicant to give a cross-undertaking in damages. Given that in most major construction projects the potential liability could run into several hundred thousand, if not millions, of pounds, interim injunctions are rarely pursued by individuals or NGOs. Yet the consequences of this can be disastrous and irreversible. The RSPB cited Lappel Bank in Kent, which resulted in a landmark legal victory for nature conservation, but during which an important part of the Medway Estuary and Marshes was turned into a car park. Twenty-one per cent of respondents raised an inability to provide a cross-undertaking in damages as a barrier to environmental justice.
The Aarhus Convention requires contracting parties to provide a review procedure with adequate and effective remedies, including injunctive relief as appropriate. If the RSPB, arguably the largest environmental organisation in the UK, cannot afford to give an undertaking in damages, there is little reality that others will be able to do so. Indeed, many respondents contend that they should not be expected to do so. WWF points out that the loss of an internationally important site is a loss to the nation and it is the public purse – not an individual or a private, membership-based charity – that should bear the responsibility for preventing such loss.
However it would appear that fines are the most oft used sanction in Environmental law in the UK. Research carried out on behalf of the Department for the Environment, Food and Rural Affairs indicates that between 1999 and 2002, environmental offences were normally the subject of fines imposed either in the magistrates’ or Crown Courts. It is also telling that in the magistrates’ courts there has been an increase in the average level of fine imposed for a summary offence but where the trial has been on indictment the average level of fine fell quite markedly during the study period.
There is an overwhelming view in Environmental law circles that fines for environmental offences are generally too low. Senior officials in the Environment Agency have expressed they discontentment at the level of fines imposed by the criminal courts. They have of course indicated that insignificant fines will not act as a deterrent to the commission of further environmental crimes and that those companies that do regularly pollute come to regard the fine as merely a further cost of production which can quite readily be passed on to the consumer.
The Environment Agency have supported this contention by embarking upon a programme of training for magistrates, intended to make them better aware of the nature of environmental offences, the impact which such offences may have upon the environment and the means which magistrates have to hand to punish those who pollute. The magistracy has also received further guidance in the form of an environmental “toolkit” which has been drawn up by the Environmental Law Foundation and the Magistrates’ Association. This training whilst, welcomed, does raise issues as to impartiality. Should interested parties be training judges? This discussion of course goes beyond the realm of this paper. However the proposals that have been put forward are worthy of further discussion.
The Environment Agency, like the final Environmental Justice Report published by the Environmental Justice Project in March 2004, recommends that tariff guidelines (as opposed to Guidance) would be helpful. Two recent cases reinforce the case for guidelines, though it seems the opportunity to pick up the recommendations has been lost. In R. v Yorkshire Water Services Ltd the Court of Appeal found that a fine of £119,000 for committing four breaches of s.70 of the Water Industry Act 1991 was too high and substituted it with a total fine of £80,000. The Court of Appeal set out a number of considerations that the sentencing court ought to have in mind, rather than endorsing the suggestion for tariff guidelines. These included: (a) the degree of culpability involved in the commission of such offences of relatively strict though not absolute liability; (b) the damage done in a spatial and temporal ambit and its effects; (c) the offender’s previous record, including failure to heed the warnings; (d) that a balance had to be struck between a fitting penalty and the effect of that penalty on an already underfunded organisation; (e) the offender’s attitude and performance after the events, including the plea; and (f) that it should determine for any one incident rather than add up the manifestations of that incident represented by the court in that indictment,.
Furthermore, the Court of Appeal in R. v Anglian Water Services Ltd has recently endorsed the use of the Magistrates’ Association Guidelines on Sentencing, which is a step forward. The Court of Appeal found that a fine of £ 200,000, imposed by Basildon Crown Court, in a case involving a serious local case of water pollution (that was caused by the discharge of sewage effluent into a river) was manifestly excessive. The Court of Appeal accordingly reduced the fine to £60,000. In January 2002, Roy Hart brought a private prosecution against Anglian Water Services (AWS) when he discovered sewage in the River Crouch. Despite alerting AWS, it took four hours for them to shut off the flow from the works. In the meantime, over two kilometres of the river had become polluted and caused serious damage to fish and wildlife. The Court of Appeal found that, in the circumstances, a fail-safe system should have been in place to deal with such polluting events. However, in reducing the fine, the Court of Appeal took into account the prompt remedial action by AWS, their guilty plea and the steps taken by AWS to prevent recurrence of such an incident. The Court of Appeal confirmed that the number of AWS’s prior convictions was not of great significance in light of the scale of AWS’s operation. The Environment Agency asked the Court of Appeal to establish a sentencing tariff system based on the Environment Agency’s common incident classification system for prosecuting pollution offences. The Court of Appeal found this inappropriate, as each case should be considered on its own facts. However, the Court of Appeal did endorse the use of the Magistrates Association Guidelines on Sentencing, which they found helpful. Despite reducing the level of the fine in this particular case, they specifically referred to the guideline which calls for Magistrates to accustom themselves, in appropriate cases, to imposing far greater penalties than have generally been imposed in the past.
In setting out the views of the Agency regarding the level of environmental fines, it has been implicitly accepted that they are generally lower than they should be. However, the point should be made that the fact that the courts routinely impose fines which are lower than the prosecutor or other interest groups consider is appropriate should not suffice, of itself, for the fines to be characterised as being lower than they should be. After all does any interest group in any subject area regard the courts as adequately punishing those who commit offences against the interest which they seek to promote or protect?
An alternative way of looking at this matter is to remember that generally within the criminal justice system we see merit in allowing non-specialist judges and magistrates to determine penalty levels, and do not allow prosecutors to recommend appropriate levels of penalty. Instead, we simply allow both prosecutors and defence lawyers to make comments through the case referring to the enormity (or triviality) of particular incidents and their consequences, and to the general nature of the conduct of the defendant. If the judge or magistrate decides to take a less serious view of the matter than does the prosecutor, this should perhaps be welcomed as a worthwhile corrective to the Environment Agency’s particular sectional view of the matter. The Agency is often the nearest we get to the victim of an environmental crime. It follows, therefore, that it will inevitably have strong views about the seriousness of offences. Since magistrates and judges try many other cases and witness the very much more appalling consequences of other kinds of criminal behaviour, might it not be argued that their unwillingness to invoke the heaviest penalties is a response which we should learn from rather than deride?
The Environmental Agency achieves a success rate of more than 90 per cent in the cases which it prosecutes. Although it must be considered that many of the offences brought by the Environmental Agency relate to strict liability offences. The Environmental Agency spends approximately £12 million per year on its enforcement functions, a sum which amounts only to some 3 per cent of its regulatory budget. It would seem to follow, therefore, that budgetary decisions have a significant impact upon the Agency’s decision whether or not to prosecute with the result that less cases are prosecuted than might otherwise be the case if more were spent on this aspect of its regulatory function. The generally low incidence of environmental prosecutions coupled with the Agency’s preference for prosecuting cases in the lower courts may perhaps be said to have inculcated the very attitude to those offences to which the Agency now objects. . This phenomenon is not confined to the Environment Agency. Apparently some 70 per cent of local authorities have not taken an environmental case to court despite the various statutory powers and duties which they have in this context. The Agency is now working with local authorities by offering training courses as to how to promote prosecution for environmental crime. Therefore it is suggested that if the Environmental Agency wanted to raise the profile of environmental offences it might be more appropriate to prosecute more cases on indictment in the hop of securing more substantial fines.
Reasons for Low Incidence of Prosecution in Environmental Law
It has been suggested that one of the reasons why the scale and nature of the crime does not always correspond to the seriousness of the crime is that environmental crime is not regarded as a ‘real’ crime. The Criminal Law Working Group for the Environmental Justice Project noted that “the Crown Court appears to lack interest and conviction in environmental matters. This was felt to be due to a lack of relevant education, training and experience and issues such as fly-tipping lack the “glamour” of Grievous Bodily Harm and, accordingly, do not attract the same degree of respect“. Also, the legislation in place does not always recognise the seriousness of the environmental crime. For example, the dredging of a river, which has enormous environmental consequences, is only enforced through Land Drainage Byelaws, which is a summary offence only. In addition, not all offenders consider themselves as ‘criminals’ e.g. larger companies and for licence breaches. This suggests that one of the solutions to the problem could be to elevate further the status of environmental protection and to understand the seriousness of environmental degradation.
Further rationale that has been indicated to be part of the rationale for the low incidence of successful convictions is the newness of the environmental crime as a concept. Antonio Vercher Noguera pointed out that “the penal protection of the environment is relatively new. This is completely logical since environmental law itself is basically ‘virgin law’, unprecedented in history. In fact, as has been observed, most environmental legislation has emerged in these last decades. In addition, environmental science, the study of ecology, environmental systems, zoology, conservation etc. and the interconnection of these studies is a new ‘science’. This is all a product of the latter part of the 20th century. Besides, environmental matters constitute a specialised area of science which has its own terminology, its own technical concepts, and so on. This means that the judiciary will have to deal with some special aspects with which it will not be familiar.”
Corporate Environmental Crime
The environmental crime sub-committee of the Environmental Audit Committee produced a report, which suggested that a “robust civil penalty regime” should replace the current criminal regime. The concept behind this is to deter businesses from failing to comply with their obligations under environmental legislation. The sub-committee’s support is, however, subject to qualifications. Although the report did express concerns of the ability of the Environment Agency to be responsible for the operation of a civil penalties regime at a time when the Agency is facing a cut of £4 million in its Grant in Aid budget from Defra for 2004/05, and when in addition, it is being asked to make efficiency savings in excess of £75 million. If the Agency were to have total discretion in the setting of the level of a fine under a civil penalty regime, the sub-committee considers that it is essential that it gets that level right in order for a fine to have the necessary deterrent effect. The report also notes that criticism can be levelled at central Government in the environmental context is that it is not always as good as it might be at communicating policy, new legislation and regulation to those to whom it applies. Accordingly, whilst acknowledging that we are still at a very early stage in the process of the development of an environmental civil penalties regime, the sub-committee nevertheless considers that formulating an effective communication strategy will be a “fundamental pillar” of any such regime in order to prevent “unforeseen rights of appeal being granted to those companies who might seek to demonstrate ignorance”. The reason for the Agency considering such a regime was a paper which suggested that civil penalties would be a more effective way of dealing with Environmental Crime and this will now be considered in some detail.
Environmental Civil Penalties–A More Proportionate Response to Regulatory Breach
This recent report represents a further and important contribution to the body of research into environmental justice which is currently being conducted for Defra. The authors of the report, Michael Woods and Professor Richard Macrory, have previously examined the feasibility of establishing a specialist environmental tribunal for the determination of environmental regulatory appeals. In that report, they briefly considered the concept of the “civil penalty” and whether or not it might be utilised in the context of environmental pollution. The report which is now to be discussed represents a fuller consideration of the potential value of environmental civil penalties.
At the beginning of this report the authors explain how environmental regulation is conducted in the United Kingdom. They draw particular attention to the fact that in the regulatory model which has been adopted, “criminal prosecution or the threat of such prosecution still remains the primary sanction in operation“. However, as they then proceed to observe:
“… the pursuit of a criminal prosecution through the courts is frequently difficult and time-consuming, in particular for the regulators with limited resources and for the regulated with their reputation to defend. Using the criminal law entails particular procedural safeguards and outcomes which can seem inappropriate and heavy handed where the harm caused is perhaps not truly ‘criminal’ in intent. The end result may often be a fine that takes little account of the costs of rectifying the environmental damage which has been caused. For many types of regulatory breach, criminal prosecution may therefore be a disproportionate tool”.
The report then discusses why the use of civil penalties is a solution to the current problem. In addition to considering the distinction between civil and criminal regulation, the strict liability nature of many UK environmental offences and the different standards of proof which are applied in criminal and civil proceedings they consider the two styles of environmental enforcement which are generally adopted: the “compliance approach” which, as the report notes, is “based on maintaining mutually beneficial relationships between the regulatory agency and the regulated, with a view to encouraging conformity through ongoing consensus in order to avoid regulatory breach”; and, the “deterrence approach”. [This latter approach
“… focuses more on punishing the perpetrators of environmental damage through the taking of formal action to prevent future transgression”.
Whilst the authors of the report rightly point out that in the United Kingdom the tendency has been to adopt the “compliance approach“, they do further remark that more recently “so-called ‘responsive regulation’ has become an influential alternative”. This concept which, as the report notes, was first suggested by Ayres and Braithwaite, [recommends:
“…the flexible use of the available range of enforcement mechanisms, on the understanding that a regulatory agency should minimise regulatory interference as far as possible“.
Such an approach encourages the regulator to target its regulatory activity in such a way as to ensure compliance without an over-use of the criminal law. The threat of a criminal prosecution must, however, remain:
“the regulator refrains from a deterrent response as long as the firm is co-operating; but when the firm yields to the temptation to exploit the cooperative posture of the regulator and cheats on compliance, then the regulator shifts from a cooperative to a deterrence response“.
The authors identify that civil regulation will achieve the following aims:
• social condemnation;
• specific deterrence;
• general deterrence;
• the protection of third parties; and
• the payment of compensation or reparation
Thus they conclude:
“Civil penalties therefore appear more closely aligned with criminal fines than private civil law damages, in particular because they retain a punitive element, even if their purpose is more focused on deterrence“.
The report also notes that civil penalties can be distinguished from “administrative” or “fixed” penalties on the basis that the latter are “imposed more mechanically by a regulator, without the discretion available for assessing the amount of a civil penalty”. Other forms of civil sanction are identified but not discussed further in the report, and the following tentative definition is proffered:
“A civil penalty can perhaps therefore be defined as a discretionary monetary sum which is imposed flexibly under the civil law rather than the criminal law, in order to achieve deterrence and reparation“.
Although the matter is not dealt with at this stage of the report, it is evident from a later chapter in Environmental Civil Penalties that what is envisaged is a civil penalty imposed by a regulatory body rather than by a civil court.
The report then considers who would have the power to enforce these sanctions should they be an option. The task of environmental regulation in England and Wales is carried out by a number of bodies, which include the Environment Agency, English Nature and the local authorities. Since all of these bodies have the power to bring prosecutions in respect of environmental offences, it may be that each would be attracted by the prospect of being able to impose a civil penalty as an alternative in an appropriate case. For the purposes of the model, however, it is proposed that “there may be merit in limiting their use to one agency in order to test their impact before wider adoption“. Not surprisingly, the authors of the report identify the Environment Agency as the “leading candidate” in this regard on the basis that:
“… it has the widest area of responsibility at present, and especially because of its primary responsibility for regulating industry, in respect of which the application of civil penalties might be particularly beneficial”.
In the event that the experiment proved to be a success, an arguable case would exist for extending the use of civil penalties to areas of environmental law dealt with by other regulatory bodies. Indeed, local authorities already have some experience of civil penalties in an environmental context under the Environmental Protection Act 1990, the Dogs (Fouling of Land) Act 1996 and the Noise Act 1996. Under each of these enactments, it is possible for a person whom the local authority has reason to believe has committed a relevant offence to discharge any liability to conviction for that offence by the payment of a fixed penalty. The fixed penalties for these offences are as follows: £50 in England and £75 in Wales in respect of the depositing and leaving of litter (see s.88 of the Environmental Protection Act 1990); £100 in respect of emitting noise from a dwelling which exceeds the permitted level specified in a warning notice (see s.8 of the Noise Act 1996); and, £50 in England and £75 in Wales in respect of failing to remove dog faeces where a dog has defecated on designated land (see s.4 of the Dogs (Fouling of Land) Act 1996).Of course, under such arrangements a local authority’s discretion is limited. It is entitled to decide whether or not to allow the person suspected of the offence to settle the matter by payment of a penalty and to serve a notice accordingly, but the decision as to whether or not to discharge his potential criminal liability by paying the penalty is for the recipient of the notice. A local authority’s discretion is further limited by the fact that the penalty is fixed at a prescribed sum which may only be increased from time to time by regulations made by a Minister. Thus a local authority has no ability to adjust the level of the penalty to fit the particular circumstances of the c
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