GG3557 GG4557

1
GG3557GG4557

• Environmental Law Justice

William Walton
2
UK Statutory Environmental LawCrime
Punishment
3
Institutional Context

• Westminster Parliament responsible for all
  environmental legislation pre 1998
• UK joined EU 1972
• Devolution to Scotland 1998
• DEFRA principal Govt. department for environment
  in England
• Parliamentary committees / RCEP

4

• Environmental agencies to monitor and enforce
  laws issue licenses
• SNH / SEPA / EA / Natural England
• EA / SEPA - Environment Act 1995 s.4
• Agencies have to consider costs and benefits
  in discharging duties.

5
Common Features of UK Environmental Statutes

• Many industrial operations / plants require
  licenses (permits) to operate
• Control of Pollution Act 1974 BPM
• Environmental Protection Act 1990 IPC / BATNEEC
  / BPEO
• Reference to local conditions NOT national
  targets etc

6

• 4 yearly reauthorizations.
• EU directive 2008/1/EC IPPC
• Directive adopts UK local standards approach
  (subsidiarity)
• IPC changed to Pollution, Prevention and Control

7

• PPC applies to
• Energy production etc
• Metals production
• Minerals production
• Chemicals production
• Waste management
• Paper production
• Food production
• Intensive farming

8

• Waste management also run under licensing system
• Operators subject to spot checks by EA / SEPA.
• Licenses stipulate what is authorized.
• Offence to act outwith conditions of license.

9
Statutory Environmental Offences

• Wide range of UK environmental statutes
• Control of Pollution Act 1974
• Environmental Protection Act 1990
• Water Resources Act 1991
• Environment Act 1995

10

• Environmental crime includes all offences either
  created by statute or developed under the common
  law that relate to the environment (Sixth Report
  to the Environmental Audit Committee
  Environmental Crime).
• Many offences are criminal.
• Long history of regulatory capture.

11
Statutory Environmental Offences

• Causing pollution
• Knowingly permitting pollution
• Breach of license conditions
• Failure to comply with notices
• Breach of statutory duty
• Contravention of prohibitions

12
Statutory Environmental Offences

• Components of criminal offences
• Actus reus
• Mens rea
• Mala in se
• Mala prohibita
• Most statutory environmental offences are strict
  liability

13
Statutory Environmental Offences

• Water Resources Act 1991 s.85
• person commits an offence when he causes or
  knowingly permitsany poisonous, noxious or
  polluting matterto enter controlled waters
• Alphacell Ltd v Woodward 1972
• Environment Agency v Empress Car Co
  (Abertillery) Ltd 1999

14
Statutory Environmental Offences

• Wildlife Countryside Act 1981 s.1(2)
• any person in possessionof a wild bird or an
  egg of wild birdshall be guilty of an offence
• Kirkland v Robinson 1987

15

• But some offences require both actus reus and
  mens rea
• EPA s.33(1)
• a person shall notdeposit controlled waste, or
  knowingly cause or knowingly permit controlled
  waste to be deposited on any landwithout a waste
  management license

16

• s.33(7) provides defence if person.took all
  reasonable precautions and exercise all due
  diligence to avoid commission of an offence that
  he acted instruction from employer and did not
  know that his act constituted an offence
• WCA s.1(1)
• if any person intentionally kills, injures or
  takes any wild bird, takes or destroys the nest
  of a wild birdor takes or destroys an egg of any
  wild bird.he shall be guilty of an offence

17
Sanctions and Penalties

• Circa 5-10,000 environmental prosecutions each
  year in England and Wales (includes local
  authorities and HSE)
• Circa 150-200 each year in Scotland by SEPA
• Prosecution one of several sanctions available.

18

• Regulatory pyramid
• Revocation of license
• Suspension of license
• Criminal penalty
• Enforcement notice
• Amendment of license (IPC / IPPC)
• Warning letter
• Dissuasion

19

• Enforcement Notice Environmental Act 1995 s.78E
• EA can serve remediation notice on owner /
  occupier of contaminated site.
• Criteria for prosecution
• Is there sufficient evidence to raise a realistic
  prospect of conviction?
• Is it in the public interests to bring
  prosecution?

20

• Significance of environmental consequences
  (offence seriousness)
• Operating without a license
• Persistent or excessive breaches
• Failure to comply with formal requirements
• Reckless disregard of standards / good
  practice
• Obstructing Agency staff in gathering information

21

• EA has power to prosecute
• SEPA must refer to Procurator Fiscal
• Sentences for prosecutors vary custodial
  sentence suspended custodial sentence
  conditional discharge community punishment
  order compensation order injunction.
• EA Spotlight on Business 10 Years of Improving
  the Environment.

22

• Serious permit breaches 2007 396
• Waste 159 (34) 57 companies fined 761,000
  total
• Water 92 (20) 15 companies fined 300,000 total
• Other 112 (24)
• Fines restricted by Parliament

23

• S.23 EPA 1990
• Summary conviction fine not exceeding 20,000
• Indictment Unlimited fine and up to 2 years
  custodial sentence
• Environmental Permitting (England and Wales)
  Regulations 2007 - 50,000

24

• House of Commons Environmental Audit Committee
  2005 Corporate Environmental Crime
• Most serious environmental offenders are water
  and waste companies
• Suggest using robust civil penalty regimes for
  potential offenders
• Problems with trying to use criminal sanctions
  against corporations

25

• Corporate Manslaughter and Corporate Homicide Act
  2007
• (Stockline plastics factory Potters Bar /
  Paddington etc rail crashes).