Prosecution
242. In measuring the effectiveness of a regulatory
body, it would appear simple to take the rate of prosecution as
a measure of performance. However the Environment Agency prefers
not to: it views its powers of prosecution as a method of last
resort. Dr Leinster said that the organisation's aim would be
"a very low level of prosecution ... associated with most
of industry obeying the law".[450]
Likewise, Ms John argued that "prosecutions are an interesting
statistic but ... in a sense an indication of failure" because
an operator who is prosecuted will have rejected all other attempts
to encourage compliance.[451]
The witnesses did not perceive this stance to be at odds with
the Agency's enforcement role; Mr Gallagher affirmed the Agency's
toughness, telling us:
"We have sent three
people to gaol for waste management offences and prosecuted somewhere
between three hundred and four hundred people for poor standards,
so I do not expect at the moment the industry necessarily to feel
that we are its friend".[452]
We could see the logic in the Agency's argument if
we were convinced that the threat of prosecution is a significant
deterrent to poor operators and if the rate of prosecution declined
in direct relation to an improvement in environmental standards.
But we are not convinced that the threat is a sufficient deterrent
to offenders when the rate of prosecution is consistently low.
243. If the Agency is to improve its performance
in inspection and enforcement, it needs to reconsider the message
which it is sending out to the industry, that it would really
rather not prosecute. The aim of partnership with the waste management
industry is important,[453]
but the Agency must ensure that it remains, and is recognised
as, the dominant partner. The Agency's new appraisal system
must be backed by a strong prosecution policy.
244. Equally, however, we are mindful of the role
of the courts, since the Agency has until now succeeded in securing
prison sentences in only one per cent of cases.[454]
The regulator's new draft prosecution policy notes that Magistrates'
Courts have powers to imprison for up to six months for environmental
offences, and Crown Courts have powers to imprison for up to five
years.[455] It would
appear that, on the whole, they choose not to do so.
245. Imprisonment may not always be an appropriate
measure but we believe that in many cases a real threat of a prison
sentence is a more significant deterrent than a fine. Dr Leinster
seemingly defended the courts, saying that "there is a variation
in the approach taken by magistrates ... because an individual
magistrate may not see many environmental issues coming before
them".[456] While
a training pack has already been introduced, the Environment
Agency and the Minister should seek early discussions with the
Lord Chancellor's Department concerning magistrates' awareness
of the seriousness of environmental offences.
246. While the Agency has much to do to improve its
performance in relation to its existing responsibilities, it expressed
frustration that activities it would like to police remain beyond
its resources. In the following paragraphs we shall examine two
of these issues: fly-tipping, and avoidance of the Landfill Tax
through disposal of waste to exempt sites.
FLY-TIPPING
247. In its early days, the possibility that the
Landfill Tax would encourage fly-tipping was a major concern for
environmental groups, local government and for the public. Coopers
& Lybrand carried out a survey in July 1997 which discovered
that, at that time, 78 per cent of respondents believed that fly-tipping
had definitely or probably increased as a result of the tax.[457]
References to similar beliefs and anecdotal evidence were made
in evidence by the DETR, the Local Authority Waste Disposal Companies
Association, the Environmental Services Association, South West
Water and Biffa Waste Services.[458]
248. The National Farmers' Union wrote to us that
it had carried out its own survey of members which revealed a
clear increase in fly-tipping on to agricultural land since the
introduction of the tax:
"The results show that
71% of farmers questioned have experienced illegal fly-tipping
on their land, and nearly a third of respondents had more than
10 separate incidents each year ... our members are left to bear
the burden and cost of removing the waste and disposing of it
legally, which usually costs them up to £500 each year".[459]
Local authorities charged with cleaning up public
sites inevitably face similar problems and pressures on expenditure.
249. It has proved curiously difficult to determine
exactly what effect the Landfill Tax has had in respect of increases
in fly-tipping. The absence of reliable "base-line"
data complicated the analysis, as did the absence of definitions
of the "various types of fly-tipping".[460]
The Environment Agency undertook a survey of fly-tipping with
the Tidy Britain Group,[461]
the initial results of which said merely, "that there may
have been an apparent increase in the incidence of fly-tipping
but it does not actually prove it is linked to the Landfill Tax".[462]
250. The Environment Agency's primary frustration
is that, having made a commitment to address this issue there
are no resources available for it to do so.[463]
Mr Gallagher told us that the money has "to be squeezed out
from other areas" but that the Agency is nevertheless moving
ahead with plans to improve surveillance of sites at risk.[464]
He added that the Agency has asked the DETR to consider the provision
of funds to deal with the problem. The problem of fly-tipping
must be tackled. We therefore support the Agency's application
to the DETR for additional resources in this respect.
428 QQ21-22 Back
429 Ev
pp 15, 101 Back
430 See
Annex 2 Back
431 QQ70-73 Back
432 Q73 Back
433 Q70 Back
434 Q551;
Ev pp 153, 101 Back
435 Ev
pp 179, 246 Back
436 Q80 Back
437 Q80 Back
438 Ev
p 109 Back
439 Q550 Back
440 Ev
p 99 Back
441 QQ233,
636; Ev p 99, 243-244 Back
442 Q234 Back
443 See
Annex 2 Back
444 Waste
Management Paper No. 4: Licensing of Waste Management Facilities,
DoE 1976, [3rd ed. 1994] Appendix B Back
445 Q80 Back
446 Q81 Back
447 Q820 Back
448 Q234;
Ev pp 243, 294 Back
449 Q826 Back
450 Q749 Back
451 Q812 Back
452 Q80 Back
453 Q80 Back
454 Q80
(cited above, Ed Gall) Back
455 Enforcement
and prosecution policy, Draft
for public consultation, The Environment Agency 1998 Back
456 Q831 Back
457 Landfill
Tax - is it working?, Coopers
& Lybrand London 1997 p3 Back
458 QQ43,
209, 650; Ev pp 8, 149 Back
459 Ev
p 219 Back
460 Q89 Back
461 Q89 Back
462 Q834 Back
463 Q91 Back
464 Q80,
89 Back
