ILLEGAL LOGGING: USE OF CIVIL AND CRIMINAL LAW TO ADDRESS

IMPORTS OF ILLEGALLY LOGGED TIMBER

KATE COOK

MATRIX CHAMBERS

SOME PRELIMINARY ISSUES

• Defining illegally logged timber

• Identification of timber products

• Tracking the movement of timber consignments

Defining illegally logged timber

• Action Plan: “timber harvested in violation of national laws”

• Wide range of illegal practices

• Article 2 of Regulation 2173/2005: “legally produced timber” is that produced from timber which is legally harvested/legally imported in accordance with national laws (as set out in Partnership Agreement)

Identification of timber products

• Limited coverage of FLEGT licensing scheme: roundwood and rough sawnwood

• Difficulties with plywood

• Contrast with CITES regime

Tracking Timber Movements

• Need for chain of custody

or

• Excellent intelligence!

Criminal Law: Handling Stolen Goods

• Section 22 of the Theft Act 1968: “A person handles stolen goods if (otherwise than in the course of stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal or disposal or realisation by of for the benefit of another person, or if he arranges to do so”

• Section 24 of the Theft Act: the provisions of the Act relating to “stolen goods” apply to goods stolen abroad

Goods

• Includes “things severed from the land by stealing”, section 34(2)(b) of the TA

• Section 4(2) TA: a person cannot steal things severed from land except when he is not in possession of the land and appropriates anything by severing it etc

Goods stolen abroad

• Section 24(1) TA

• Prosecution must show that the harvesting constituted the offence of stealing under local law

• The Prosecution must prove this-inference not sufficient

• Criminal Justice Act 1993: Handling stolen goods is a Group A offence: jurisdiction provided any of the relevant events occurred in England and Wales

Knowledge and Intent

• Prosecution must prove that the accused knew or believed the goods to be stolen

• Mere suspicion is not enough

• Nelsonian indifference unlikely to be sufficient

Double jeopardy

• Previous acquittal or conviction for the same offence is a bar to prosecution provided the earlier adjudication results from a valid process by a competent court

• NB stealing and handling are alternative charges

Civil Law: Conversion

• Torts (Interference with Goods Act) 1977

• Conversion involves an infringement of the rights of possession of the owner of the goods

• 3 elements: (1) defendant’s conduct inconsistent with owners rights; (2) conduct deliberate and not accidental; (3) conduct so extensive an encroachment as to exclude owner from possession and use of goods

Issues• Strict liability: not necessary to show fraud or dishonesty on the part

of the person dealing with the goods

• Conflict of laws: “relevant foreign element”-which is the applicable law to determine (1) right of possession; (2) the tort claim?

• Who may sue: either person in possession or with an immediate right to possession…

• Who may be sued: anyone dealing with the goods eg importer (subject to loss of title)

• Remedies: damages/delivery up

US Lacey Act

• Prohibits import into the USA of fish and wildlife “taken, possessed, transported or sold in violation of any foreign law”

• Foreign law: must be sufficient nexus to wildlife protection (but would include measures with several purposes)

ECHR issues?

• Article 7 ECHR: an offence my be “clearly described by law”-not an exacting standard

• Article 6 ECHR: expert on foreign law must be treated as prosecution witness

• A1P1: interference with property rights (deprivation) but justified in the public interest?

• Proportionality (of measure and the underlying foreign law)

Community Competence

• No general competence in criminal law matters but…

• Case C 176/03 Commission v Council:

“when the application of effective, proportionate and dissuasive criminal penalties…is an essential measure for combating serious environmental offences” Community can take measures relating to MS criminal law (para 48)