House of Commons - Environmental Audit

Select Committee on Environmental Audit Sixth Report

Introduction

1. During the late summer of 2003 we decided to set up a Sub-committee on environmental crime. We had been increasingly aware over that year of concerns expressed about prosecutions and sentencing in this area, and we were interested in the overlap between environmental crime and local environmental aspects of the anti-social behaviour agenda being highlighted by Government and local authorities across the country, largely in response to public concern. We were also aware of some discrete areas within the broad scope of environmental crime, such as wildlife crime, which were continually prominent in the media and in the concerns of members of the Committee. It was decided to confine the Sub-committee's work to England and Wales on account of the different legal system in Scotland and Northern Ireland.

2. The Sub-committee on environmental crime was established on 12 November 2003. At its first meeting on 10 December, the Sub-committee decided to pursue a number of different inquiries beneath the umbrella of environmental crime. As its first inquiry, the Sub-committee decided to look into the matter of environmental crime and the courts, in the light of anxieties prevalent in the environmental media and anecdotally passed on to the Committee by agencies and bodies dealing with such crimes that there were problems with the proportion of crimes dealt with by the courts, and with the level of sentences given. It was argued that, given the low level of sentences handed out for the few cases that were successfully prosecuted, the courts were not providing the necessary deterrent to those engaged in environmental crime nor adequate punishment for their activities.

Scope of inquiry

3. The Sub-committee announced this first inquiry on 10 December 2003. It wished in particular to hear views on:

the scale and nature of sentences for environmental crimes, and whether or not they were commensurate with the seriousness of the crimes for which they were given;

whether sentences were appropriately set to act as a deterrent;

whether sentencing for environmental crimes was sufficiently flexible to allow appropriately sentencing;

whether the guidance currently available for magistrates' courts was sufficient - and whether or not it was being used; and

to what extent the principle of sustainable development, or other broad environmental principles, was seen by practitioners as the basis for sentencing decisions.

4. Twenty-three memoranda were received, some also relevant to inquiries that the Sub-committee intends to cover following this first inquiry. Oral evidence was heard from seven witnesses. We are grateful for all the evidence given to the Sub-committee and for the co-operation extended to it during its inquiry.

5. We are aware that there have been a number of recent developments in the area of environmental crime, not least on account of the recent enactment of anti-social behaviour legislation. Some of these developments promise to answer some of the concerns expressed to us before the Sub-committee commenced its inquiry. We are likewise aware of a number of developments that are to be expected during the remainder of this calendar year. On 23 February of this year, the Department for the Environment, Food and Rural Affairs (DEFRA) released two consultation papers dealing with fly-tipping which will hopefully result in a strengthening of the due process of law.[1] There is increasing governmental concern, local and national, and there is now more than just that - there is also action to deal with some of the problems manifest in this area.[2] We are however concerned at the rate and extent of this improvement: it is slow, sometimes unnecessarily so, also uncertain and patchy. This rate of improvement also sadly falls within the context of environmental crime not having been taken seriously enough for many years, during which time it has festered, leading some people to become habitual offenders and others to accustom themselves reluctantly to predictable and seemingly inescapable blight. It is also clear that, despite the praise due for progress made recently by Government and many local authorities in particular, environmental crime still remains in some areas far from the priority it ought to be.

What is environmental crime?

Statute

6. Environmental crime includes all offences either created by statute or developed under the common law that relate to the environment. The environment is, in simple terms, the surroundings in which we live. Section 1 of the Environmental Protection Act 1990 defines the environment as 'all, or any, of the following media, namely the air, water, and land'. That Section also defines pollution of the environment as pollution 'due to the release, into any environmental medium from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.' Successive governments have legislated to give powers to executive agencies to protect the environment and enforce environmental legislation. International environmental law and principles have been transposed into national law to ensure compliance with state commitments. Environmental crime has not been codified or consolidated into a single Act but is found in a range of separate pieces of legislation. Some of the most frequently used criminal sanctions are found in the Environmental Protection Act 1990 (as amended) and the Water Resources Act 1991.

Key organisations

7. The main organisations for securing environmental protection in England and Wales are the Environment Agency (hereafter, the Agency) and the environmental health teams of local authorities. The main aim of the Agency is to prevent or minimise harm to the environment and it has a range of enforcement and other powers available. It manages significant environmental impacts such as waste management, water pollution, the integrated pollution prevention and control regime and radioactive substances. Local authorities have powers and responsibilities for looking after the well-being of their communities. They manage local air pollution, land use, trees and open spaces and matters relating to anti-social behaviour including noise, dog fouling and fly posting. There is overlap in responsibilities between the Agency and local authorities, particularly in relation to waste, which is governed by a protocol defining the key roles. This protocol is currently the subject of one of the DEFRA consultations referred to above. In terms of environmental crime, each agency has investigation and prosecuting powers and must comply with investigating and prosecuting codes of practice. Aside from the Agency and local government, other bodies involved in investigation include the police who are responsible for investigating wildlife crime and certain cases of criminal damage. The Crown Prosecution Service is the prosecuting agency for the police. Other prosecuting bodies in this area include HM Customs and Excise, the Pesticide Safety Directorate and the Health and Safety Executive.

Uniqueness of environmental crime

8. It is estimated that there are up to 10,000 environmental prosecutions annually. This number is comparatively small. There were in total 1.93 million offenders proceeded against in the year 2002-03 with 33,000 for burglary alone.[3] This might suggest that, in comparative terms, environmental crime should be given less attention than many other crimes. However, Dr Leith Penny, Director of Cleansing at Westminster City Council, suggested to us that, roughly speaking, only 10% of all known environmental offences end up in court .[4] The bald statistics fail to reflect the unique nature of environmental crime. It is distinct from other aspects of law because of the potential impact of any given incident on a large sector of the community, wildlife and habitats. There may also be long-term adverse effects on the environment and future generations, effects that go way beyond simple visual blight, and loss of amenity. With reference to the local environment, there is also increasing evidence that there is a connection between local environmental degradation and increasing incidences not only of environmental but of other crimes. Whereas many other crimes involve the concept of risk of harm—drink-driving for example—that risk in environmental crimes can often be less evident at first sight but the harm more pervasive. Environmental offences also may have significant health implications.

Relevant principles of criminal law

9. All criminal cases begin in magistrates' courts. If a defendant pleads not guilty to the charges the case will proceed to trial and may transfer to the Crown Court. Magistrates hear over 95% of all criminal cases. This proportion is even higher for environmental cases: in most environmental cases, the defendant will plead guilty. This is often because the majority of environmental offences are 'strict liability': in other words, the offences do not require proof of mens rea, or guilty mind, in respect of one or more elements of the offending act, but simply proof that the relevant act has been committed, unlike, say, murder which requires intention to kill the victim. Once a defendant has been convicted or has pleaded guilty to the offences, the court will pass sentence.

Sentencing

10. Section 142 of the Criminal Justice Act 2003 has introduced new statutory purposes of sentencing which include the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders.[5] These sentencing purposes are supported by a range of sentencing options including imprisonment, suspended sentences, community service orders, fines, conditional and absolute discharges. For companies, excluding directors or the controlling minds of a company, fines are often the only option. Courts decide sentences by taking into consideration both the aggravating and mitigating factors of each particular case. Before imposing a fine the court is also under a duty to consider the offender's financial circumstances. In 2000, the Sentencing Advisory Panel issued guidance to the Court of Appeal in environmental cases.[6] It stated that for most environmental offences the starting point should usually be a fine and this should then be adjusted to take into account any aggravating or mitigating factors.

11. Many environmental offences carry exceptional summary maxima that allow magistrates to impose fines of up to £20,000 per offence. This is four times the value of the current statutory maximum fine on summary conviction for most other crimes (conviction in the magistrates' court). A few environmental offences have exceptional summary maxima of £50,000 and in one instance £250,000 (for the discharge of oil in UK waters).[7] Many environmental offences also attracted unlimited fines if sentenced in the Crown Court. At present, DEFRA is consulting on whether the maximum summary sentence for certain waste offences should be increased from £20,000 to £50,000.[8]

Sentencing guidelines and guidance

12. In 2001, the Magistrates Association issued guidance entitled: Fining of Companies for Environmental and Health and Safety Offences. It issued guidance on wildlife crimes in 2002 entitled: Wildlife Trade and Conservation Offences as well as guidance for sentencers entitled: Costing the Earth. The Court of Appeal has declined to issue guidelines on environmental sentencing. In the case of R v Anglian Water Services (2003) it endorsed the Magistrates' Association guidance but stated that sentencing should be considered on a case-by-case basis.[9] In the absence of any more rigorous guidance there is inevitably a great diversity of sentences given for broadly similar crimes across the country.

Environmental crime: the challenges

Infrequency of environmental crimes

13. Environmental crime, being a broad and diffuse area of offence whose gravity is not at first always evident, presents many challenges to those authorities tasked with dealing with it. In its first inquiry, the Sub-committee chose to focus in particular upon sentencing because it was clear that here the broad nature of such crimes, and the comparative infrequency of their coming before a court, was causing the greatest problems for practitioners in terms of setting sentences appropriate for punishment and/or deterrence. As Mr Ric Navarro, Director of Legal Services to the Environment Agency, explained to the Sub-committee, "we know on average that only once in seven years a magistrate will have an environmental crime case".[10] While this may somewhat overstate the infrequency with which magistrates consider environmental crimes in reality, it is clear that this lack of practical experience underpins many of the problems we will touch upon on during this Report. It is also worth noting that, as Mr Navarro went so to say, "judges who are sitting day after day dealing with normal crime […] find it difficult to know where to pitch environmental crime".[11] We will come later to the matter of guidance that might assist in addressing this difficulty.

14. This infrequency is not just a problem afflicting magistrates and judges. Some of those prosecuting are also less than well-practised. In 2000, the Sentencing Advisory Panel in advice to the Court of Appeal pointed out that the standard of prosecution in environmental cases was often deficient.[12] For local authorities this may indeed have been down to lack of experience and expertise, and many local authorities have begun to take steps to address this problem. Some local authorities, of course, have always prosecuted environmental cases well. For the Environment Agency, whose prosecutors could be expected to be both experienced and properly trained, it is clear that standards were lower than they should have been. At the time that the Sentencing Advisory Panel made its comments about standards of prosecution, the Agency began a new rolling training scheme for prosecutors and investigators, and since then the EA has assured us that standards have risen.[13]

Level of sentences

15. In broad terms, one of the principal concerns that confronted us was the fact that the level of sentences given in courts—principally magistrates' courts—for environmental crimes was too low for them to be effective either as punishment or as deterrent. This was particularly the case with repeat offences. As Councillor Sir David Williams from the Local Government Association explained to us: "When you get somebody going to court for fly-tipping for the third or fourth time and they get the same standard fine which is a small fraction of the amount of money they have gained from fly-tipping… that is not only wrong in principle but very frustrating for local councils, and only encourages the crime".[14]

16. Many different reasons were cited for this phenomenon of low sentences. Some proffered the view that magistrates were unsympathetic to the idea that environmental crime was real crime. Others felt that they were sympathetic but lacked the proper guidance or the necessary experience. It was also suggested that the higher maxima involved in many environmental crimes dissuaded the practitioner from using the full scope of sentencing available by dint of their very rarity: a magistrate used to sentencing by fines of no more than £5,000 will baulk at going higher, even when permitted, in an area in which he feels he has little experience.[15] Although we were told that "prosecutors are reporting a perception of a greater confidence, understanding and awareness by sentencers",[16] almost all witnesses agreed that sentences were generally too low, the maxima were not being taken advantage of, and that consequently the punishment for environmental crimes was slight and no real deterrent. We are concerned that the general level at which fines are imposed neither reflects the gravity of environmental crimes, nor deters or punishes adequately those who commit them. This is clearly unsatisfactory.

Nature of sentences

17. For the vast majority of current environmental crimes, the only options open to a court until now have been to fine, or, for more serious crimes—and more serious criminals—to imprison. Only in the case where a prison sentence would be given can the option of a community sentence for some crimes be used instead. In 2002, we were told, "something like 30 people received a community sentence [for all environmental crimes prosecuted]… and a handful went into custody".[17] Given the breadth and unique nature of environmental crimes, this restricted choice of substantive sentences is particularly problematic. It has been suggested that, regardless of the severity of fines, financial penalties are a blunt instrument and often inappropriate both for the sorts of crimes that fall within this category and for the sorts of offenders who commit them. For many forms of environmental crime, compulsory remediation work on the sort of blight for which the offender was himself responsible would be a more appropriate sentence than a fine. As Mr Simon Baxter, Chief Enforcement Officer of the London Borough of Southwark, told us: "if a child is caught doing graffiti, they should be made to go and clear that graffiti off for the next six weekends…the magistrates and the judicial system need to be creative in how they punish individuals".[18] However, as noted above, at the moment, for most crimes, such work, in a community service order, can only be given if the offender had committed a crime serious enough or been thought deserving of imprisonment. For the vast majority of environmental crime cases brought before the courts neither of these factors applies. We consider it unfortunate that community sentences have for so long been tied inflexibly to custodial sentences. This has markedly reduced the ability of courts to pass appropriate sentences for environmental offences.

Appropriateness of sentences to offenders

18. As we have seen, it is commonly felt that environmental criminals are best punished, and their sentence best put to use, by practically mitigating the ugly face of other environmental crimes—whether by cleaning up graffiti, fly-tipped waste or by making restitution to some environment damaged by crime. However, there is a further dimension to this: the extent to which the sentence should fit not just the crime but also the criminal. Clearly, one-off offenders and those with a record of repeat offences should be dealt with in different ways. Likewise, someone in a large corporation sentenced on account of an environmental crime (organised flyposting, for example) perpetrated in order to further his business interests should be dealt with differently to an employee who through negligence allowed some small environmental damage to occur. In the instance of a company where the identity of the real individual culprit is unknown or unknowable, fines are the only sentence currently available. It is clear that, given the current paltry range of sentences available, there is simply insufficient scope to properly tailor sentences to offenders.

19. There are two particular areas where this is most of all a problem. A significant proportion of offenders who are presented before courts in environmental cases receive as sentences fines which verge on the derisory in the context of the seriousness of the crime. In R v James, James and James & Gilbert Gardens Nurseries, thousands of tonnes of waste was dumped in 18 separate offences between 1999 and 2000. The individuals concerned were fined only £750 and the company £80 at Cardiff Crown Court.[19] Sometimes they are discharged without any fine at all. In many instances this is because the offenders claim that they are without sufficient means to pay a more appropriate level of fine, as they are on benefit or income support.[20] Offenders also claim that substantial fines would harm their business and may perhaps result in commercial insolvency.[21] The inability of the sentencing system to deploy a punishment other than an insignificant fine in these instances is self-evident and deeply unsatisfactory. Magistrates are compelled to take account of an offender's means and of the ability to pay off a fine within one year.[22]

20. There is also a proportion of offenders who come before a magistrate who find even a significant fine derisory in terms of their ability to pay. Often there are commercial bodies or companies whose monthly turnover dwarfs the size of even the maximum possible fine from a magistrates' court. Magistrates of course have the option of transferring the case upwards to the Crown Court where some crimes attract an unlimited fine as sentence, but this happens very rarely.[23] Moreover, when cases have been transferred to the Crown Court and received very substantial fines, these fines have been reduced, often to a very marked degree, upon Appeal. One example of this is the case of the Milford Haven spillage of some 72,000 tonnes of crude oil which damaged 38 Sights of Special Scientific Interest (SSSIs), where a fine of £4 million was reduced to £750,000 on appeal, despite the fact that the Agency costed the remedying of the damage to between £49 and £58 million.[24]

Polluter does not pay enough

21. It is a further problem that many of those who claim to have insufficient means to pay a reasonable and appropriate level of fine are nonetheless making significant profits from their crimes. Bodies involved in prosecuting environmental offences, such as the Environment Agency, are aware of many individuals who claim poverty or near insolvency yet who regularly offend and who can make substantial amounts of money from their offences. This seems to apply in particular to fly-tippers, although there are instances where individuals concern themselves in a variety of areas of environmental offence within a short period of time—they appear to have a portfolio of environmental and other contraventions which they can pursue and profit from (including dealing in red diesel, the dumping of construction waste, fisheries poaching, &c.,).[25] This is clearly unsatisfactory, and reinforces the sense that environmental crimes pay and that the polluter does not pay sufficiently if at all. Repeat offenders in particular need to be given more than just a slap on the wrist in the form of a very low fine which they will probably not pay anyway and which will have no impact upon their habit of lucrative offending. It appears to us that the profits made from crimes form too little a part in decisions as to the size of fine or sentence to be given. Courts—and prosecutors—need to bear in mind that unless the polluter pays substantially more than the sum he profits by from his crime there will be no real deterrent or punishment value to the sentence given.

Non-payment of fines

22. The Department for Constitutional Affairs (DCA) reported that only 55% of fines in 2002-03 (in terms of total monies) was actually collected.[26] The Department has no information as yet on what proportion of individual fines this represents because individuals who have been fined a number of times have an accumulated financial total to their names rather than a number of individual fines. Clearly, many of those fined do not pay—this represents an even clearer signal that fines as sentences are not just low, insufficient as punishment and as deterrent, but ineffectual even in wringing a pitiful amount of money from offenders' hands. In addition to this, magistrates take account of likely payment or non-payment when giving fines as sentences. This again tends to reduce the level of the fine given.[27] Furthermore, what money is collected goes into the Central Fund and at the moment—unlike monies from fixed penalty notices—cannot be poured back into prosecuting or investigating environmental crime, or into the environment in general, which is clearly what those involved in this area would most like to see. The Environment Agency stressed to us that it would very much like to retain these monies, "to go on increasing [the] enforcement effort… or on projects to benefit the environment".[28] Mr Keir Hopley, Head of Sentencing Policy and Penalties Unit in the Home Office, in evidence to us suggested hopefully that there was movement in central government in that direction.[29] Both the low level of payment of fines and their indiscriminate destination are unsatisfactory. It is evidently far too easy to avoid payment: and even were 100% of fines to be paid, it would be of no benefit to those leading the fight against these crimes. This is hardly a just situation.

Mitigating and aggravating factors in sentencing

23. Courts are obliged to follow guidelines on factors which may mitigate or aggravate the severity of the sentence being considered. We have already touched upon sentences being reduced upon account of an offender's ability to pay. This is an example of a mitigating factor. There are a number of other grounds for similarly reducing sentences. It appears that mitigating factors are applied more freely than aggravating factors and this may lead to an imbalance in sentencing. The principal reason for this imbalance, leaving aside the frequency of questionable recourse to mitigation on account of insufficient means to pay, may be that most environmental offences are of strict liability and do not require a proof of intent, only that the criminal activity has been carried out by the offender. The absence of the need to demonstrate intent appears to assist mitigation in that some crimes may not be considered real crimes because the offender did not intend to commit them.

24. It is arguable that prosecuting authorities could do better in putting aggravating factors before the courts with greater energy. Investigating authorities could also do more than expose the bare minimum—that an offence was committed by a particular person or body —and to look into the intention behind the crime. Was there malice, or design to avoid cost or to benefit from gain? This would of course eat up more resources, take longer and perhaps lead to fewer prosecutions with prosecutors trying to prove more than they currently need to. We consider it unfortunate that the lack of need to prove intention means that the level of fines is more likely to go down than up as crimes are assessed more on strict liability grounds rather than in the context of malice or clearly culpable negligence. Risk of harm in crimes is already taken into account where appropriate: perhaps a factor that recognises the uniqueness of environmental crime and its peculiarly wide effects should be placed before the courts so as to ensure a more balanced outcome to trials. We believe that there may be grounds for establishing guidance that crimes against the environment merit an automatic aggravation before the court—in other words, that one of the aggravating factors included as guidance for magistrates or judges is damage to the environment or threat to local sustainability.

Corporate offences

25. While many environmental crimes are caused by lazy, negligent or malicious individuals, some of the worst instances of such crimes are the responsibility of companies or—in the most flagrant cases—are deliberately carried out by commercial bodies. Such bodies range in size from very small organisations, employing two or three individuals, to very large multi-national businesses. Their turnover and profitability also range across a very large spectrum, and in the case of the latter does not necessarily have any connection with the size of the business concerned. In other words, it may be unjust to fine a large company which is seldom very profitable or whose profits are necessarily slight in comparison to its size more than a smaller company which makes much more in terms of profit for its business, perhaps because it habitually commits environmental offences in order to avoid greater costs. Much of the evidence presented to us was directed at problems in dealing effectively with corporate crime: prosecuting the most appropriate individual in a business (the formally guilty party) rather than whoever is easiest to connect materially with the crime; finding any responsible individual in a business at all when intention does not have to be discerned and the company just wishes to pay the relevant fine, no questions asked; adjudging the appropriate level of fine when there is often no evidence of the general profitability of a company or its turnover, and no evidence as to the financial weight (avoided cost or earned profit) of the offence itself; and dealing forcibly with companies who deliberately and repeatedly flout the law for reasons of commercial profit.

26. It would appear from the evidence we received that prosecuting bodies spend more time and more resources on such corporate environmental crimes than their frequency would proportionately entail. Whether the form of corporate crime be the posting up of prostitutes' cards in a telephone box or the spilling of oil which blights an entire regional coastline, some of the problems outlined above seem in most instances to apply. In both the above, the person most easily prosecuted—the individual posting up the cards or who allowed the oil to spill—is not necessarily the only person who ought to be punished. It is very difficult to get behind the crime to the principal offender. Cases in which intrusive investigation to establish who is at greatest fault is clearly most necessary when an offence results from culpable negligence or deliberate intent. Examples of the latter include fly-posting campaigns approved of by companies involved—Sony Records, for example, or Ansell, the owners of the Mates condoms range, whose business development manager was quoted in Mediaweek as saying that fly-posting gave the Mates brand "more street credibility".[30] In such cases, where the offence may result in considerable profits for the company involved, prosecutors rightly think it almost beside the point to deal only with a lesser individual carrying out the crime for which a senior executive is effectively responsible. Even putting aside the often extreme difficulty of finding and successfully prosecuting the individual behind the decision that led to an environmental crime, the current sentencing system is just not flexible and imaginative enough adequately to punish corporate bodies or those in senior managerial positions within them. It is disgraceful that some companies openly boast about their crimes as though they manifested some sort of commercial talent or marketing genius. The Government must adopt a much tougher stance with businesses—regardless of their size and nationality—which flagrantly flout the law.

Recent developments

27. In the light of these anxieties, we are therefore pleased to see that with regard to fly-tipping, one of the most prevalent and significant of environmental crimes, DEFRA has, in its recent consultation, proposed increasing the fines for fly-tipping offences to take into account, in particular, repeat offending. It is clear that magistrates must be encouraged to pass higher sentences, and that higher maxima are appropriate. It is however not certain that the option to give a higher sentence alone will lead to higher sentences, since at the moment the average fine for fly-tipping is under one half of the current maxima. It is also noteworthy that sections 43-7 of the Anti-Social Behaviour Act 2003 have recently come into force which assist prosecutors and sentencers in dealing more flexibly—thus effectively—with local environmental crime, particularly graffiti and fly-posting. This is very much to be welcomed.

Summary of the existing challenges

28. Given all of these factors it is remarkable that prosecuting bodies have the determination to prosecute as many cases as they do. Justice must often appear to be a lottery, and a lottery that costs the authority pursuing the case more than it is likely to receive in costs and more than the offender is likely to receive in terms of any fine. Investigating and prosecuting bodies must be congratulated for continuing to bring cases before courts when the chances of a satisfactory outcome realistically appear so slight.

29. In conclusion, fines are too low and community sentences are not used frequently enough, despite their particular appropriateness. Current sentencing, even taking into account these three alternatives, is still too inflexible, especially when it comes to offenders who claim insufficient means—at one end of the scale—or those whose means are very great—at the other. Current guidelines for the mitigation of sentences work in favour of the offender and fail to recognise the peculiar nature of environmental crime and its gravity. In terms of fines, minima are probably inappropriate—for custodial sentences clearly so: maxima for fines in magistrates courts are not high enough for some offenders and offences, but there is also no sign that anywhere near the limit is commonly being given anyway.

30. The use of custodial sentences at all for environmental crime is rare and probably should remain that way. More scope needs to be given to the application of community and alternative sentencing at this level and at the lower level of crimes. In particular, the Government needs to look at enabling courts to deal more practically with criminals in this area—in particular, with repeat criminals. Preventing the common-or-garden fly-tipper, "the man with the white van", from owning or driving a van is more useful than fining him a negligible amount which he will more than make up with his next "job". While the current guidance for magistrates on environmental crimes is good it is not necessarily being used as much as it might be. Training for magistrates is infrequent and often superseded by training which relates to more common crimes.[31] The general problem remains that the exposure of magistrates to these crimes is infrequent and most therefore lack experience and expertise. The current situation is clearly unsatisfactory and has been so for a number of years. That it is beginning to improve is welcome, but it is too late, and progress is still too slow. Habits of environmental crime that would not have formed but for the inadequacy of sentencing now have to be broken.

31. In one sense there appears to have been collective failure to deal effectively with environmental crime once they reach the courts. The failure of such crimes to be considered as any sort of priority was made to clear to us by Mr Keir Hopley, Head of the Sentencing Policy and Penalties Unit at the Home Office, when he said "to be absolutely honest in terms of my day-to-day job and life, environmental crime is not at the forefront of my agenda"[32]: DEFRA however has to accept principal responsibility for not having addressed what it must have known to be an unsatisfactory position with regard to sentencing for environmental crimes. The Agency has certainly before now made DEFRA aware of the problems it faces. Local authorities also, once they—late in the day—decided that environmental crime was a real problem, passed on their concerns. It is the job of DEFRA to present those concerns to the Home Office whose interest in crime is so broad—necessarily—that it cannot be expected to have any special consideration for one area of crime over another. Yet DEFRA appears to have been a lacklustre agent for positive change. It may be significant that the Department neither sought to give oral evidence during this inquiry nor, until one was directly sought, submitted a written memorandum— and that memorandum treats environmental crime almost entirely within the narrower scope of wildlife crime. It is perhaps unsurprising, given DEFRA's seeming absence from the environmental crime debate that took place during the course of the Sub-committee's inquiry, that so little was done earlier. Only the Government's concern with anti-social behaviour, a sadly euphemistic term that covers a variety of local environmental and other crimes (no less serious for their being local), seems to have kick-started any real interest in DEFRA with the crime and punishment agenda.

32. DEFRA must seize the initiative and push forward a bold and radical agenda to implement whatever changes are necessary to progress this unsatisfactory area of sentencing. Without deterrence and real punishment it cannot be expected that the incidence rate and gravity of environmental crimes will reduce. It is a problem that needs to be tackled not stroked into submission. We expect DEFRA to move on from its welcome consultations over fly-tipping to consider wider and more detailed changes that will assist the Agency and local authorities in particular in ensuring that those they detect and prosecute successfully will receive sentences that are robust and appropriate to the crimes committed and to the type of offenders involved.

1 Fly-tipping Strategy and Consultation on statutory directions to the Environment Agency and waste collection authorities on the unlawful disposal of waste, DEFRA, February 2004. Back

2 see Living Places: Cleaner, Safer, Greener, 11^th Report of the Select Committee on the Office of the Deputy Prime Minister, Session 2002-03. Back

3 Criminal Statistics in England and Wales 2003, Cm6054. Back

4 Q197. Back

5 Q243. Back

6 Q32; Sentencing Advisory Panel (2000) - Advice to the Court of Appeal, page 4. Back

7 Ev58. Back

8 Ev59. Back

9 Ev96. Back

10 Q5. Back

11 Q6. Back

12 Ev70, para 17. Back