PROTECTION OF THE ENVIRONMENT THROUGH
CRIMINAL LAW
(a)
(21196)
7952/00
DROIPEN 14
(b)
(21971)
14373/00
DROIPEN 60
(c)
(22017)
14880/00
DROIPEN 63
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Draft Framework Decision on the protection of the
environment through criminal law.
Draft Framework Decision on the protection of the
environment through criminal law.
Draft Framework Decision on the protection of the
environment through criminal law.
|
| Legal base:
| Articles 31(e) and 34(2)(b) EU; consultation; unanimity
|
| |
| Department: |
Home Office |
| Basis of consideration:
| EM of 20 February 2001
|
| Previous Committee Report:
| None; but see (19759) 10951/98: HC 34-xi (1998-99), paragraph 7 (24 February 1999) and HC 34-xvii (1998-99), paragraph 4 (28 April 1999)
|
| To be discussed in Council:
| 15 - 16 March 2001 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| (All) Cleared |
Background
13.1 In April 1999, we cleared a Danish
proposal for a Joint Action on combating serious environmental
crime.[47]
Following the entry into force of the Treaty of Amsterdam, the
text was frozen. A Danish proposal for a Framework Decision (document
(a)) was deposited last May, but was sidelined when the French
Presidency decided to take a different approach and to base the
measure more closely on the existing Council of Europe Convention
on the protection of the environment through criminal law of 4
November 1998. Working group discussions on that Convention resulted
in the production of a draft text (document (b), which has now
been superseded by a revised version, document (c), on which our
report concentrates.
Document (c)
13.2 The draft Framework Decision is intended
to establish criminal offences for certain acts relating to the
environment, both when committed intentionally and through negligence.
It requires Member States to set effective, proportionate and
dissuasive penalties for these offences, and includes further
provisions on liability of legal persons and on jurisdiction.
It provides for implementation two years after adoption.
The Government's view
13.3 In her Explanatory Memorandum, the
Minister of State at the Home Office (Mrs Barbara Roche) tells
us that the Government is content with the main provisions of
this measure, which are broadly equivalent to existing UK legislation
on environmental crime. A change in UK law would, however, be
necessary for the implementation of Article 9 (1) which requires
each Member States to establish jurisdiction for offences committed
in whole or in part in its territory.
13.4 The Minister then comments on particular
Articles of the draft Framework Decision, among which are the
following:
"Article 1: During
Working Group discussions, the Government established that 'unlawful',
as defined in Article 1, is to be interpreted as unlawful in the
country where the conduct referred to in Articles 2 and 3 took
place. This is important because a wider interpretation of 'unlawful'
would have caused serious practical difficulties, including possible
conflicts of jurisdiction.
"Article 2: Article 2(a) of the Council
of Europe Convention provides that each party shall establish
as a criminal offence: the discharge, emission or introduction
of a quantity of substances or ionising radiation into air, soil
or water which creates a significant risk of causing death
or serious injury to any person. The Government secured the removal
of the reference to 'creating a significant risk' from the draft
Framework Decision, in view of the fact that the concept of 'creating
a significant risk' has no equivalent under UK law.
"Article 3: Article 3 requires Member
States to establish the conduct described in Article 2 as criminal
offences when committed with serious negligence. The term 'serious
negligence' is used in place of 'gross negligence' which is used
in the Council of Europe Convention. The Government considers
that it is reasonable to interpret serious negligence as covering
manslaughter offences, and recklessness when applied to offences
against the person...
"Article 7: The Government is content
with the provisions in Article 7 concerning the liability of legal
persons, since the wording includes the 'directing mind' concept
(by virtue of the wording 'who has a leading position within the
legal person'). The wording in Article 2 does not imply that the
intentional offences include intentionally causing death or serious
injury. The first part of each sub-article in Article 2 must be
intentional, i.e. the discharge, emission or introduction, but
not necessarily the causing of a person's death or serious injury.
"Article 8: The Government welcomes the
provision in Article 8(e) which refers to preventive or remedial
measures.
"Article 9: ... Article 9(1)(a) would
oblige the United Kingdom to take jurisdiction for offences committed
'in whole or in part' in UK territory. Given the nature of environmental
crime, the Government considers that such jurisdiction is appropriate...
"Article 10: The Government considers
that the target date is ambitious. Its achievability as far as
the UK is concerned will depend on the Government's future legislative
programme."
13.5 The Minister also tells us that the
Commission has argued in a working paper that some of the provisions
in the draft Framework Decision would be more appropriately sited
in the first pillar. The Government does not agree.
13.6 The Minister informs us that the Swedish
Presidency is hoping to secure political agreement on the measure
at the Justice and Home Affairs Council on 15-16 March.
Conclusion
13.7 The Government had several concerns
about the original Danish proposal for a Joint Action, which it
considered went too far, and which would have required significant
changes to United Kingdom legislation. The Minister is clearly
much more favourably inclined towards the current proposal, and
has set out her views in helpful detail.
13.8 We clear all the documents.
47 (19759) 10951/98; see headnote to this paragraph.
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