APPENDIX 14
Memorandum from the UK Environmental Law
Association
1. The UK Environmental Law Association
(UKELA) is the UK forum which aims to make the law work for a
better environment and to improve understanding and awareness
of environmental law.
2. UKELA's members are involved in the practice,
study or formulation of Environmental Law in the UK and the European
Union. It attracts both lawyers and non lawyers and has a broad
and growing membership. UKELA is the network for those interested
in environmental law in the UK and key issues including GMOs/biotechnology,
insurance and liability, climate change, IPPC, environmental impact
assessment, waste, contaminated land, water and planning. It includes
a working party on Environmental Law in Scotland and is particularly
concerned that all countries within the UK have the best quality
environmental legislation and adequate resources for implementation.
UKELA was formed in 1987 and has around 1,000 members. They include
both corporate and individual members, based mainly in the UK
but also overseas.
3. This submission has been prepared on
behalf of UKELA by the chairman, Andrew Wiseman, with the assistance
of James Kennedy, convenor of the practice and procedure working
party, Andrew Baker, convenor of the nature conservation working
party and Martha Grekos, member of UKELA's council. UKELA wishes
to note from the outset that due to the very short time period
provided for submitting evidence to this part of the inquiry (which
also largely coincided with the Christmas/New Year period) the
opportunity to canvass its membership and respond more fully has
been limited (particularly in respect of some of the more specific
questions, such as question 6).
OVERVIEW
4. UKELA welcomes the Environmental Audit
Committee's inquiry into environmental crime, which it sees in
the wider context of governmental efforts to improve access to
environmental justice and deliver better environmental protection
through the law. UKELA notes that this inquiry is part of a series
of inquiries by an EAC sub-committee into access to environmental
justice. This would further the research commissioned by DEFRA
in 2003 which covered many aspects of access to environmental
justice, including two reports focusing on environmental crime
and sentencing. UKELA believes that clear goals should now be
set for the publication of how the government responds to the
recommendations in these reports and how and when priority actions
should be taken forward. In particular the key areas for further
discussion, and those which would merit further investigation
by the sub-committee include:
— Increasing access to environmental
justice by addressing the issue of cost (this could be by the
adoption of the principle of wider use of no-cost orders). (Environmental
Justice? A draft report by the Environmental Justice Project:
ELF; WWF; Leigh Day & Co 2003 and Using the Law: Barriers
and Opportunities for Environmental Justice, Maria Adebowale 2003).
— Introduction of a limited third party
right of appeal in land use planning cases ("modernising
Environmental Justice: regulation and the role of an environmental
tribunal", Richard Macrory and Michael Woods, UCL 2003 and
the Environmental Justice Project draft report as above).
— Introduction of civil penalties in
appropriate environmental cases (Environmental Civil Penalties,
a more proportionate response to regulatory breach, Michael Woods
and Richard Macrory, UCL 2003).
— Establishment of a more consistent
system for gathering data on environmental sentences (Trends in
Environmental Sentencing: Claire Dupont and Dr Paul Zakkour, Environmental
Resources Management Ltd, Defra 2003).
— Increased powers for regulatory bodies
(Environmental Justice Project draft report as above).
5. Those issues which are pertinent to the
current inquiry are discussed in more detail below.
6. UKELA, with others, is also persuaded
of the urgent need to set up an environmental tribunal to consider
certain environmental appeals (a tribunal of this kind has received
support over the last 15 years or so from those with expertise
in environmental law, most recently in "Modernising Environmental
Justice: regulation and the role of an environmental tribunal",
Richard Macrory and Michael Woods, UCL 2003). This issue has been
thoroughly researched and discussed and the outstanding issue
of the cost of running such a tribunal, alongside its benefits,
is now a matter for DEFRA/the Department of Constitutional Affairs
to establish. UKELA would hope that a decision would be made on
this before the end of 2004 in the interests of putting a more
transparent, consistent and well informed system into place and
to establish "the environment as firmly in our legal structures
as it is now in our laws" (Lord Justice Carnwath, commenting
on the environmental tribunal proposal).
ENVIRONMENTAL CRIME
7. The two reports mentioned above dealing
with environmental sentencing, together with the Environmental
Justice Project draft report which discusses related issues, have
been of great assistance in identifying some of the issues and
potential solutions concerning environmental crime. Many of the
findings of those reports are discussed by UKELA in its responses
to the questions below.
QUESTIONS ASKED
BY THE
EAC
Q1. Are the scale and nature of sentences for
environmental crimes commensurate with the seriousness of the
crimes themselves?
8. The data on environmental sentences is
insufficient to answer this question fully as there is no centralised
data and it is not gathered in a systematic way. The ERM report
on Trends in Environmental Sentencing in England and Wales found
that data were inconsistent, contained discrepancies and varied
with geography and the sentencing authority. UKELA supports ERM's
recommendation that a consistent system for gathering data should
be established and trend monitoring carried out for a further
period of time.
9. However ERM found that in general the
level of fines were much lower than the maximums set down (averaging
£2,730 in magistrates' courts in 2002 with the maximum fine
generally permitted being around £20,000), although the trend
is towards slightly increasing fines. This would indicate that
insufficient discretion is being used in imposing deterrent fines
which could lead to greater environmental protection. There have
been some exceptional cases. For instance, a fine of £4 million
against the Milford Haven Port Authority for oil spillage from
the "Sea Empress", though this was reduced to £750,000
on appeal.
10. However, a reason why the scale and
nature of the crimes do not always correspond to the seriousness
of the crime, is that environmental crime is not regarded as a
"real" crime or the legislation in place does not legislate
for its seriousness. For example, the dredging of a river, which
has enormous environmental consequences is only enforced through
Land Drainage Byelaws, which is a summary offence only. There
is therefore a need to elevate further the status of environmental
protection and to understand the seriousness of environmental
degradation.
11. In addition, a severe problem that the
Environment Agency faces is that many individuals as well as commercial
companies plead impecuniosity before Magistrates. Therefore even
if the Magistrates can fine heavily for the environmental crime,
they have to reduce the fine substantially as a result of the
plea which means that many defendants can end up paying a minimal
weekly/monthly fine (eg £10). A solution would be to break
the nexus of fining and Community Service. As local authorities
carry out various environmental projects, fly-tippers (for example)
could be asked to assist in the cleaning up if they are unable
to pay.
12. On the issue of wildlife crime specifically
UKELA does not believe that this is taken seriously enough within
the court system. For example, although a limited number of bat
related crimes (brought under The Conservation (Natural Habitats
&c) Regulations 1994 (Habitats Regulations) and the Countryside
and Rights of Way Act 2000) get to court sentencing is often seen
to be too lenient with fines not sufficient to discourage recidivism.
Better education of the Judiciary on wildlife issues is seen as
essential. Many appear to trivialise the crimes and are not willing
to use maximum sentences even for repeat offenders. There is a
general feeling within the ecological profession that while wildlife
laws are quite powerful and are taken seriously by the police
(many forces have wildlife officers) the system fails once it
gets into the court system.
Q2. Are sentences appropriately set to act as
a deterrent?
13. The answer to this is set out above,
but it is not just the issuing of low fines that results in a
failure to deter environmental offenders: the failure to prosecute
at all is a problem. For example, ERM looked at the issue of fly
tipping in some detail. ERM pointed out that this is a major issue
for the government and for local authorities. However local authorities
rarely prosecute mainly because of confusion about who should
proceed with prosecutions and lack of sufficient evidence and/or
resources to gather it. ERM concludes:
"This situation is symptomatic of the existing
confusion as to who is responsible for prosecuting fly-tipping
incidents. The fact that some local authorities are more active
than others leads to inconsistency between different regions,
with the subsequent risk that fly-tipping activities will be transferred
to areas where the enforcement of legislation is less stringent".
14. ERM concluded that while more resources
would be needed to determine the level of repeat offending, in
any event out of 73 local authorities surveyed by ERM 70% had
not prosecuted any fly-tipping case over five years. Of the 19
which had prosecuted fly-tipping cases, five indicated that they
considered the fines too low.
15. Problems also exist because regulatory
activity is subject to institutional and functional limitations:
such as lack of time, lack of money and not enough manpower.
16. The UCL civil penalties report argued
that that some environmental offences did not sit well with the
usual justifications for criminal prosecution and therefore made
courts "more reluctant to impose a sentence or fine commensurate
with the environmental damage caused". They suggested the
introduction of civil penalties for appropriate cases could be
a way of addressing some of the issues related to failures to
bring cases forward. This is discussed further below.
17. The draft Environmental Justice Project
report also came to broadly the same conclusions. It found:
"the most significant problem in the criminal
justice system seems to be that the penalties routinely imposed
vary, and do not provide a deterrent to corporate and persistent
offenders".
18. One step forward on the road to deterrence
has been the Environment Agency's policy of "naming and shaming"
companies that have proved to be the worst polluters (in the Annual
Spotlight on Business Performance Report). Also since 2002 the
Environment Agency, the biggest prosecutor of environmental crime,
has increased enforcement and prosecution.
19. There can be little doubt that not only
the low sentences, but also failure to prosecute at all, mean
that for some environmental crimes there is little or no deterrence
effect in the current system.
Q3. Is environmental sentencing sufficiently flexible
to ensure that offenders, whatever their means, are punished appropriately.
20. This question is central to the UCL
report, "Environmental Civil Penalties" prepared by
Woods and Macrory. It concludes:
"Criminal prosecution is too rigid an approach
to be used for all but the most serious offences. It focuses on
achieving punishment rather than prevention, and requires more
stringent procedural safeguards, which undermine regulatory efficiency
. . . this is leading to systemic problems involving the trivialisation
of environmental offences and the imposition of inadequate fines,
and may also give rise to reluctance on the part of regulatory
agencies to pursue more difficult cases".
21. UKELA would commend the consideration
of introducing civil penalties for appropriate environmental crimes
to the EAC, given the increased regulatory flexibility these can
provide, though more research needs to be carried out. The benefits
are that civil penalties make a direct financial link to the level
of environmental damage caused in accordance with the polluter
pays principle, reduces the administrative and evidential burden
of having to demonstrate the criminal standard of proof in less
serious cases, and could lead to higher penalties (a more effective
deterrent—as in certain EC Member States and Australia,
as well as by other regulatory agencies in the UK, such as the
OFT). Use of civil penalties would also minimise the attachment
of moral condemnation (from criminal prosecution) in inappropriate
cases. As a result of all of these things civil penalties may
better meet the needs of regulators, the regulated and the wider
public interest. However there are questions that merit further
inquiry including: which offences civil penalties would apply
to, how civil penalties would interact with the existing criminal
system, the discretion of regulators, and how public opinion would
view what is currently a crime becoming a civil offence. The UCL
civil penalties report recommends that further work should be
carried out on how a civil penalties system might be introduced
and implemented and UKELA supports this approach.
22. The draft Environmental Justice Project
report also urges Magistrates and judges to apply the full range
of sentencing options available to them (including greater use
of custodial sentences, fining or imprisonment of individual company
directors, disqualification and the imposition of Community Service
Orders). Using a special form of local authority supervision for
fly-tipping offences has already been given as an example above.
Alternative approaches should be well publicised to provide greater
awareness of the possible outcomes of environment crime.
23. In conclusion, UKELA is of the view
that the sentencing system is currently not flexible enough for
the reasons set out above. A civil penalties system merits further
consideration and awareness should be raised on the full extent
of sentencing possibilities currently available.
Q4. Is the guidance currently available to magistrates'
and other courts appropriate and sufficient to ensure that sentences
for environmental crimes are set at a level which properly reflects
the damage caused by the crimes and the need to deter future crimes?
24. It is clear from the answers to 2 and
3 that the guidance is still at its "teething" stage
so has not yet made a significant impact on sentencing, though
some changes are being noted. As Magistrates only sit so many
times a year, and some Magistrates might not have come across
environmental crimes as often as they do other crimes or applications
(such as theft, bail applications etc), a better understanding
of environmental law cases will take more time.
25. The ERM report in its case study on
one magistrates' court, found that the magistrates themselves
claimed a good understanding of the environmental cases before
them. Ninety per cent of those surveyed claimed they had sufficient
information from the prosecution on the relevant legislation and
environmental issues.
26. The draft Environmental Justice Project
report makes a number of recommendations on guidance, which UKELA
considers worthy of consideration.
27. These include:
(a)
Magistrates courts being urged to apply the `Magistrates'
Association Guidelines on Sentencing' and monitoring of the effectiveness
of this tool;
(b)
Expanding the Guidelines to include environmental
offences currently not covered and to be applied to all individuals
and not just companies;
Q5. Are magistrates' and other courts following
any guidance available?
28. Since their publication in May 2001,
some Magistrates became aware, and therefore used, the Magistrates'
Association on sentencing guidelines for environmental and health
and safety offences. Health and Safety and Environmental prosecutors
have since then brought these guidelines to the attention of even
more Magistrates. These sentencing guidelines have been helpful
and a strong message has been sent out as its usage has increased
since 2001. Training for Magistrates has been instigated since
the issuing of the Magistrates' Association toolkit on sentencing,
"Costing the Earth 2002", which should hopefully assist
in a greater understanding of the sentences and the seriousness
of environmental crime. In the introduction to "Costing the
Earth" the Magistrates Association recognised some of the
issues identified above: "there has been some concern that
the level of fines and sentences given in environmental cases
are not high enough. This has led to situations where, for some
unscrupulous companies and individuals, it is cheaper to commit
an offence and continue to pay the fines rather than to comply
with the law and pay the real cost, including the environmental
and social cost, of polluting".
29. The Court of Appeal in R v Anglian
Water Services Ltd [2003] EWCA Crim 2243 has recently endorsed
the use of guidelines on sentencing, which is a step forward.
It found that a fine of £200,000, imposed by Basildon Crown
Court, in a case involving a serious local case of water pollution
(that was caused by the discharge of sewage effluent into a river)
was manifestly excessive. The Court of Appeal accordingly reduced
the fine to £60,000. The Court of Appeal has, of course,
its own set of guidelines on environmental offences from the Sentencing
Advisory Panel (2000). In January 2002, Roy Hart brought a private
prosecution against Anglian Water Services (AWS) when he discovered
sewage in the River Crouch. Despite alerting AWS, it took four
hours for them to shut off the flow from the works. In the meantime,
over two kilometres of the river had become polluted and caused
serious damage to fish and wildlife. The Court of Appeal found
that, in the circumstances, a fail-safe system should have been
in place to deal with such polluting events. However, in reducing
the fine, the Court of Appeal took into account the prompt remedial
action by AWS, their guilty plea and the steps taken by AWS to
prevent recurrence of such an incident. The Court of Appeal confirmed
that the number of AWS's prior convictions (65, including 64 for
sewage discharge) was not of great significance in light of the
scale of AWS's operation. The Environment Agency asked the Court
of Appeal to establish a sentencing tariff system based on the
Environment Agency's common incident classification system for
prosecuting pollution offences. The Court of Appeal found this
inappropriate, as each case should be considered on its own facts.
However, the Court of Appeal did endorse the use of the guidelines
on sentencing. Despite reducing the level of the fine in this
particular case, they specifically referred to the guideline which
calls for Magistrates to accustom themselves, in appropriate cases,
to imposing far greater penalties than have generally been imposed
in the past.
Q6. To what extent are courts sentencing on the
basis of broad environmental principles, including the principle
of sustainable development.
30. Criminal courts do not sentence on the
basis of broad environmental principles, including the principle
of sustainable development. These are principles the planning
regime takes into account as it focuses on "land use"
and are often material considerations in planning decisions.
IN CONCLUSION:
— Sentences for environmental crimes
are generally too low to be a deterrent and some crimes are in
any event not prosecuted at all.
— Sentencing is too inflexible (the
possible introduction of civil penalties and more creative use
of current available penalties are options for how this problem
can be addressed).
— Sentencing does not relate to the
environmental damage caused in a way that would see the "polluter
pays principle" being implemented.
— The effect of training and guidance
for Magistrates will take time but changes are slowly being seen,
with a discernible (if largely anecdotal) trend of courts treating
sentencing in environmental cases more seriously.
— The Guidance is not always applied
and is not comprehensive enough.
— Greater publicity of environmental
cases would raise awareness about sentences and the Environment
Agency's "name and shame" programme is a good example.
— Better data on sentences is needed
and further monitoring should be carried out.
January 2004
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