APPENDIX 13
Memorandum from University College London
(UCL), Professor Richard Macrory[28]
1. I am Professor of Environmental Law at
University College, London where I direct the
Centre for Law and the Environment. This memorandum
largely derives from two recent research projects carried out
by myself and commissioned by the Department of Environment, Food
and Rural Affairs. I am a board member of the Environment Agency
and last year retired from membership of the Royal Commission
on Environmental Pollution.
Do we need a specialized environmental court to
deal with environmental crime?
2. For over a decade there has been discussion
in the United Kingdom over the possibility of some form of specialist
environmental court or tribunal. Some of the models that have
been proposed argued for such a court to handle criminal as well
as civil matters on the grounds that due to their complexity and
technical nature environmental law offences required special treatment
which could not be provided by the ordinary criminal courts.
3. In its 2002 Report on Environmental Planning,
the Royal Commission on Environmental Pollution argued that environmental
crimes (because of their distinctive rules of procedure, penal
sanctions, etc.) were best handled by the criminal courts, though
improved training and sentencing practice could be provided. I
was a member of the RCEP at the time and agree with this view.
However, I think that they may also be a case for environmental
cases to be handled by designated magistrates' courts in
local areas (see now s 30 Courts Act 2003 for the powers of the
Lord Chancellor to make directions for cases to be heard at "a
place where other cases raising similar are heard . . .").
This would give a lot more opportunity for clerks and justices
in those designated courts to become more fully acquainted with
environmental law, and built up a critical mass of experience.
According the web-site of the Health and Safety Executive, prosecutions
for health and safety offences in Greater London are now handled
by a designated magistrates court and this "works well."
Is there a role for a specialized environmental
tribunal and would it affect the handling of environmental crimes?
4. Following on from a further recommendation
from the Royal Commission on Environmental Pollution, I recently
carried out research for DEFRA looking in more detail at the case
for a specialized environmental tribunal. The report[29]
argued that the key problem at present was an incoherent system
for dealing with "regulatory appeals". Essentially these
are provisions in environmental law which allow an applicant for
a licence or permit to appeal against its refusal and/or for someone
served with a notice such as a nuisance abatement notice to appeal
against it. These are not criminal proceedings as such but allow
a full appeal to be made against the initial decision. However,
looking across the range of environmental laws, the appeal bodies
are currently haphazard and incoherent—they include, for
example, the planning inspectorate, the Secretary of State, country
courts, and magistrates courts.
The Report argued that there was a good case
to have most such appeals consolidated before a single environmental
tribunal (operating rather similarly to the Lands Tribunal). This
would give more coherence to the system, more authority to decisions,
and would provide a much more secure base for dealing with future
developments in environmental law. The analysis in the report
has been endorsed by a wide range of bodies and is currently being
considered by Government.
5. The proposed Environment Tribunal would
not be dealing directly with environmental prosecutions. But its
existence would promote the better handling of environmental offences.
There are very few `stand alone' environmental criminal offences
in contemporary law—nearly all are based on non-compliance
with a licence/permit or the requirements of a notice. The existence
of an authoritative legal body handling appeals concerning such
permits and notices would give a more secure basis to the subsequent
handling of cases concerning contravention. We were informed during
our research, for example, that some local authorities are very
reluctant to service notices under the new contaminated land regime
because they had no confidence in the appeals regime that would
apply (in that case, the local magistrates' court). Without the
initial service of a notice, there can, of course, be no subsequent
prosecution for its non-compliance.
Is there a case for the use of civil penalties
in environmental law?
6. The sanction for beach of an environmental
regulatory requirement in this country is generally a criminal
offence, drafted in strict liability terms (ie no intention or
recklessless is required to prove the offence). The second project
conducted for DEFRA concerned the possible use of civil penalties
within environmental law, and was published in December.[30]
under (also attached).
7. The Report notes that in many jurisdictions
such as Germany, Australia and the United States, there is extensive
use of civil penalties as a means of enforcing environmental law
and of ensuring that the companies pay the full economic costs
of avoiding compliance. They do not replace criminal environmental
offences, but these are generally reserved for intentional or
reckless conduct.
8. The problem in this country is that there
is no dedicated sanction for dealing with non-intentional or non-reckless
breach of regulatory requirements. In effect criminal law is made
to work too hard for too wide a spectrum of conduct. This can
need to a trivialization of criminal proceedings and difficulties
in sentencing practice which is bound to have some regard to keep
in step with sanctions imposed for "true" criminal conduct.
As we noted in the Report, the wholesale use of strict liability
offences can lead to indignation on the part of businesses which
are found "guilty" of offences, or an inclination to
treat such offences as akin to a business overhead because guilty
is applied automatically.
9. The Report argues that there is a good
case for introducing civil penalties in connection with, say,
the requirements to comply with environmental licence conditions,
and other detailed aspects of environmental regulation. This would
give an additional sanction to environmental regulators, and allow
criminal prosecution to be reserved for truly intentional or reckless
conduct. We already use civil penalties in fields such as Competition
and Customs and Excise Law, and it clear that penalties can truly
reflect the economic gains to be made by non-compliance. Appeals
against the imposition of penalties could be made either to the
proposed new Environmental Tribunal or to a body such as VAT and
Duties Tribunal.
10. By introducing such a system of environmental
penalties, it would mean that the criminal courts would be preserved
for more truly criminal conduct in the environmental field. This
will not in itself resolve all the issues such as those concerning
sentencing practice and burdens of proof in the criminal courts.
But it would mean that at least the courts were focussed on what
would more generally be accepted as criminal conduct rather than
having to deal as now with such a wide range of form of non-compliance.
January 2004
28 http://www.ucl.ac.uk/laws/environment/index.shtml?research_past
also submitted. Back
29
Richard Macrory with Michael Wood (2003) Modernizing Environmental
Justice-Regulation and the Role of an Environmental Tribunal Centre
for Law and the Environment, London. Back
30
Woods and Macrory (2003) Environmental Civil Penalties-A More
Proportionate Response to Regulatory Breach. Centre for Law and
the Environment, London. Back
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