ENVIRONMENTAL CRIMEPROSECUTION AND ENFORCEMENT POLICY

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Environmental Law

Environmental Crime2

Criminal prosecutionsStatutory criminal liabilityEnforcement: Environment AgencyBurden of ProofStrict LiabilityAshcroft v Cambro Waste Products [1981] 3

All ER 699Definition of Environmental CrimeHigh rate of successful prosecutions: strict

liabilitySanctions Low

Enforcement3

Enforcement practises of regulatory bodiesFlexible prosecution policy of Environment

AgencyLow prosecution rateEnforcement and Prosecution Policy 2010

http://www.environment-agency.gov.uk

Criminal Liability: Envirtal Harm4

Why a definition of environmental crime matters:Technical regulatory breach / crime v environment;Strict liability? Justification?Extent to which offenders viewed as being

criminals;Determines attitudes towards law enforcement;Determines sanctions imposed for breach

What is environmental crime?Legal and Moral dimensions

Defining Environmental Crime5

Legal ApproachValue free and objective = prohibited

acts/omissions directly / indirectly damaging environment.Problems: Boundaries ?Uncertainties?Jurisdictions? Geographical? Variations

Defining Environmental Crime6

European Union: Definition of Environmental Crime?Case C-176/03 Commission v Council [2006] Env LR 18[Environmental Crimes]: EU competence to require effective, proportionate and dissuasive criminal law sanctions to ensure effective protection of environment

Case C-440/05 Commission v Council [2008] Env LR 12[Ship-Source Pollution]: Type and level of criminal = competence of MS

Defining Environmental Crime7

Directive 2008/99 on Protection of the Environment Through Criminal Law:Requires MS to provide for criminal sanctions iro anumber of defined actions committed unlawfully and intentionally or with at least serious negligence

Diverse criminal law sanctions continue in EU MSsArticle 83 TFEU Crime Legal Basis but not explicit

iro Environment

Defining Environmental Crime8

Failure to comply with remediation of contaminated land notice: EPA 1990 s78M

Environmental permitting: EP Regulations 2007 Reg 38 (Offences) and Reg 39 (Penalties)– Water Pollution and Waste Offences

Waste Offences EPA 1990 s 33(1)(a)(b)(c) and s 33(6)

Statutory nuisance abatement notice: EPA 1990 s 80(4)

Defining Environmental Crime9

Moral Dimension‘Activities causing harm to environment’???Many such activities are lawfulCriminal law for socially unacceptable behaviourTo address clearly unacceptable behaviourTo reinforce regulatory systemNevertheless attitudes to environmental harm /

crime have shiftedDistinguish routine environmental harm (civil) versusWilful env. crime for personal/business gain

(criminal)Rich perpetrators v poor working class

Strict Liability10

Liability in respect of act of omission without fault Moral foundation of ‘real’ criminal law = requirement of mental

responsibility in addition to unlawful act Justification = Ease of prosecution; Deterrent; Polluter Pays

Principle Defences, eg:Compliance with statutory consentActing in an emergency situation + notification + act to limit

effects

Enforcement Bodies and Courts do exercise discretion. EA = reluctant to prosecute unless moral blame ie criminal

intent / negligence Courts exercise discretion in sentencing

Environment Agency11

Enforcement and Prosecution PolicyInspection, entry, enforcement: s 108 (4)

EA1995Enforcement and Prosecution Policy 2010Four Principles:ProportionalityConsistencyTransparencyTargeting enforcement action

Environment Agency12

Purpose of ProsecutionPublic Interest Factors to ConsiderPresumption of prosecutionAlternatives

Leaves considerable discretion to EA in decision to prosecute or not.

http://www.environment-agency.gov.uk