ENVIRONMENTAL CIVIL PENALTIES A More Proportionate Response to Regulatory Breach Michael Woods...
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Transcript of ENVIRONMENTAL CIVIL PENALTIES A More Proportionate Response to Regulatory Breach Michael Woods...
ENVIRONMENTALCIVIL PENALTIES A More Proportionate Response to Regulatory Breach
Michael WoodsSenior AssociateStephenson [email protected]/laws/environment/civil-penalty/
What is a Civil Penalty?• The traditional civil/criminal distinction
• Crime and punishment
• “A middle system of law”
• What it is not...
CivilPenalty
A discretionary monetary sum, imposed flexibly under civil law, achieving deterrence and reparation
Regulatory Difficulties
• Over-reliance on criminal prosecution and strict liability
• Trivialisation of offences and inadequate fines
• Regulator reluctance to enforce?
Current
Optimal A more proportionate and responsive approach to regulation
Compliance through discretion and consensus, but…
Current Use of Civil Penalties Abroad
•“Second order violations”
• Benefits recapture
• BEN and SEPs
Germany
•“Inflation” of the criminal law• Ordnungswidrigkeiten• The Öztürk case
USA
Current Use of Civil Penalties in the UK
• Variety of models – growing interest
• Limitations of fixed penalties – inflexible
• OFT – CA 1988 and CAT
• Human Rights – Article 6 “criminal charges”
Benefits from Environmental Civil Penalties
• Preserves the value of the criminal law• Relieves pressure on regulators’ resources• Improved understanding and compliance• Ability to target financial gains and losses• Addresses increased public expectations
Greater Flexibility
Better match between the sanction and moral/financial costs of the offence,leading to improved compliance
Result
A Possible Model
• Environment Agency
When?
How?
What?
Who?
• IPPC, waste and water
• Discretion • Appeals
• Initial limited use• Later review and extension
Report Conclusion
Outcome
• Current system: room for improvement
• Experience of civil penalties: pragmatic and effective
• Regulators and regulated: potentially favourable
Better regulation and a better environment
Reactions
• Environment Agency • Environmental Audit Committee• Government (BRTF)
• Defra• Hampton Report • New legislation - Clean Neighbourhoods and Water Industry
UKELA? Model? Industry/NGO/public feedback? Lobbying?
Issues for Discussion• Regulatory fit – alternative or replacement?
• Type of offences – low-level and/or high level?
• Which regulator(s) – EA, EN, local authorities • Assessing penalty – standard tariff and/or discretionary factors?
• Limits on discretion – statutory cap? not > criminal fine?
• Means of appeal – Magistrates, SoS, ET? plus limited JR?
• Which parties liable – companies, individuals, directors?
• Resources – additional funding and/or hypothecation?
On the principle? On the detail?Consensus?
ENVIRONMENTALCIVIL PENALTIES A More Proportionate Response to Regulatory Breach
Michael WoodsSenior AssociateStephenson [email protected]/laws/environment/civil-penalty/