Examination of Witnesses (Questions 1-19)
22 JANUARY 2004
MR RIC
NAVARRO, MR
DAVID STOTT,
MS ANNE
BROSNAN AND
MR ARWYN
JONES
Q1 Chairman: Good morning. Thank you
very much for coming along. Thank you also for your written evidence,
which we received and read with interest. Do you have any opening
remarks you would like to begin with?
Mr Navarro: I think I would like
to welcome the interest which the Committee is showing in environmental
crime and introduce my team. I apologise, in a sense, for coming
with rather a large number of people—mob handed—but
I think that reflects the breadth of the subject, the fact that
we do take this seriously and it is very good experience to be
able to appear before the Committee. May I introduce David Stott
who is the chief prosecutor for the Environmental Agency. He is
an ex-CPS Crown prosecutor and he sits as a deputy District Judge.
Anne Brosnan is deputy chief prosecutor and has long experience
of prosecutions with the Agency and the NRA. Arwyn Jones is from
the operational side of the Agency and is head of the Agency's
enforcement and prosecution process team.
Chairman: Thank you very much indeed.
You have a good team and we look forward to hearing the answers
to our initial questions. This is, of course, our first evidence
session in this inquiry.
Q2 Sue Doughty: I think the first question
is very much a matter of us getting our head around the problems
and the challenges that we are faced with in this whole field
of crime, punishment and justice as regards the environment. What
do you believe are the main aims of the criminal justice system
in terms of environmental and sustainable development?
Mr Navarro: I think the important
first point is how broad environmental crime is and how many players
there are involved. We have submitted to the Committee a diagram
illustrating that graphically.
Mr Stott: Environmental crime,
as Mr Navarro has said, is a very wide spectrum of offending.
There are a lot of other organisations who have to deal with it,
but in terms of what we are trying to achieve—like with
any other criminal offence—is punishment, deterrence, rehabilitation
so far as we can get it. As regards the sustainability aspect,
that is to do with the environmental impacts so deterrents to
try to prevent any further damage to the environment by the penalties
and methods that we can bring to bear. Environmental crime as
such falls into the sphere of criminal courts—the whole
system—and that is where we start to run into problems because
it is different to deal with than ordinary mainstream crime assaults—burglary,
criminal damage, et cetera—and that is where, I suspect,
your further questions will start to probe. In handling environmental
crime, like any other crime, we try to punish, to deter and to
rehabilitate.
Q3 Sue Doughty: How far do you actually
believe that the criminal justice system is effective in achieving
this?
Mr Stott: Effective to an extent,
but not wholly effective. It depends—and this is the problem—on
the span of offenders; they range from the individual (fly tipper,
dumper of black plastic bags) to the multi-national. It is such
a wide span of offenders which makes it different to the normal
conventional type of crime that is dealt with. In dealing with
the individual, the smaller offender, I think it is effective
and I think the powers are appropriate if they are used properly—which
we do not think they are—but when you get outside that into
corporations or large companies we think there is a problem.
Q4 Sue Doughty: Do you feel that people
who commit environmental crimes really consider themselves as
criminals? Thinking about people's view of it—not only individuals
but corporate environmental crime and individuals who work for
corporates—the corollary of that is how far do you think
those in the criminal justice system take seriously environmental
crime, so have we got a problem both with offenders and those
dealing with offenders about the gravity?
Mr Stott: I think we probably
have. I think individuals—company directors or individual
fly tippers—who are brought into the system because we prosecute
inevitably do see themselves as criminals because of the process
that we bring them into before the courts, with the sentencing
and all the rest of it. Again, it is this element of the corporate
bodies that we prosecute and licence breachers and I think they
look at it differently. There are undoubtedly two stages.
Q5 Sue Doughty: How about the actual
justice system and how seriously they actually take environmental
crime in the courts—the lawyers, the magistrates, the judges?
What is your view about that? Do they take it as seriously as
ordinary burglary, for example, or other sorts of crimes?
Mr Navarro: I think the difficulty
is the infrequency—certainly so far as magistrates and judges
are concerned—with which they actually come into contact
with environmental crime. We know on average that it is only once
in seven years that a magistrate will have an environmental case.
I think that is probably at the heart of some of the problems.
Because they do not have the experience of those cases and they
do not necessarily understand the real impacts and the seriousness
of the cases, they find it very difficult therefore to sentence.
We have certainly welcomed the guidance which has been provided
to magistrates and we hope that is going to make a difference.
We think there are opportunities in terms of specialisation of
magistrates and the judiciary to gain experience to be able to
be better trained and we think that would have the effect of being
able to take environmental crime more seriously.
Mr Stott: On the figures themselves—which
I think are in the submissions—there are 28,000 members
of the Magistrates' Association and we prosecute between 700 and
800 cases a year. The spread is very thin. There is no concentrated
mass of cases in either location or before the same benches.
Q6 Sue Doughty: We will be looking a
little bit more about bringing offenders to prosecution. There
is a little bit of an apples and oranges problem here in comparing
environmental crime with other criminal activity. How far do you
think there is a problem about the gravity of the situation and
does environmental crime matter at all? How important is it?
Mr Navarro: We certainly seek
to lead evidence on the impact of environmental crime and the
aggravating factors that the courts should take into account.
However, I think it is true that we do sometimes have the perception—because
of the inconsistency in sentencing, particularly in the crown
courts—that judges who are sitting day after day dealing
with normal crime (shall we say) find it difficult to know where
to pitch environmental crime in that spectrum. That is why we
are suggesting—and have pressed for—guidelines which
would give assistance to the courts to give them a starting point.
Mr Stott: I think there is a change
in culture and awareness of environmental issues within the courts
generally. Annex nine shows the higher types of penalties that
have been imposed and are being imposed. I think the message is
getting through. It is like turning a ship round; it filters through
the system. We are doing a lot of training of magistrates at a
regional level. They are very keen and interested but they then
go away after the training and do not see a case for a very long
time. That is the problem.
Q7 Mr Thomas: If we look at the Old Bailey
we see the scales of justice there. On the one side we might put
the idea of the cost that you have of an Environmental Agency
prosecuting and collecting evidence, everything you do to enforce
environmental crime; on the other side of the scales we may put
the fines, punishments and so forth that are metered out. Do you
think those scales actually balance or do you think it costs an
awful lot more to deal with environmental crime than we get back
from those who are criminals?
Mr Navarro: We do not, of course,
know how much environmental crime there is overall so we are only
looking probably at the tip of the iceberg.
Mr Jones: Broadly we spend about
£12 million a year on enforcement activity, that is activity
which directly relates to prosecutions, cautions and elements
of notices. That is about 3% of our regulatory budget that we
spend on formal enforcement activity. On the other side, the fines
are just one way of penalising or punishing, and building on the
earlier evidence and I think there is a need and scope for regulators
to have a better understanding of the motivators and de-motivators
of those who are committing environmental crime. It may well be
that fines are not always the best way of punishing and de-motivating
people from committing offences at the lower end of offending.
I do not necessarily think there is a strict comparison on that
scale. We know DEFRA are very keen to help in actually understanding
that better. For example, if a skip hire operator is illegally
disposing waste in an area perhaps a better punishment for them
might be some form of community punishment which makes them clear
up the type of mess they have just created rather than necessarily
a fine. We need to understand better what motivates people to
commit and what de-motivates them from committing environmental
crime.
Q8 Mr Thomas: You say it is about 3%
of your regulatory budget. There must be an awful lot of companies
and individuals out there who are doing their utmost to follow
the rules, follow the regulations. Skips is a very good example
of where you will have a company which is doing the right thing,
therefore has to charge the customer the right amount, and another
cowboy down the road that will be cheaper, getting more business
and just disposing of the rubbish in an inappropriate manner.
How much pressure do you come under from other companies that
you are actually regulating to deal with these bad apples?
Mr Jones: I think it is fair to
say that we do come under pressure and we do respond to it. We
are trying to transform the way that we undertake our enforcement
activity into a more intelligence led approach, so trying to pull
together pieces of jigsaw that say it is company X or person B
who we really need to be focussing on and concentrating on, but
particularly working with partners in the police and local authorities
to help us put those pieces of the jigsaw together. We do respond
to that and certainly that is the way we want to target our efforts
in the future onto those who are really abusing. We had a very
good example of that recently with the tyres campaign where the
tyre industry were saying that those who actually want to follow
the rules and play the came correctly are being undermined by
those who are deliberately fly tipping tyres, and by working with
DTI and other Government Departments we were able to fund a campaign
nationally to both educate and increase awareness of how tyres
should be properly disposed of. We took a number of prosecutions
to clamp down on those who were abusing and illegally dumping.
So we do respond to that. I think we would like to be able to
do more but we need to forge stronger links and better systems
with some of our partners as well.
Mr Navarro: I think the competitiveness
aspects of environmental crime are worth looking at because at
the moment we have to fund our enforcement effort from GIA (Grant
in Aid); it is not paid for generally by charge payers. If one
does look at it as ensuring that legitimate businesses are not
undercut by illegitimate operations I think there is justification
for the legitimate businesses to contribute towards the enforcement
effort. As you know, we have had GIAs not being adjusted by inflation
so the amount of money available for enforcement is under pressure.
If we can review the charges and have a contribution from all
the charge payers towards enforcement we could do more.
Q9 Mr Thomas: There would be a huge expectation
on you then to actually up your prosecution and success rate if
that were to happen.
Mr Stott: Yes, but there is a
big area there, the unregulated side of things, especially in
the waste disposal of construction and waste and especially round
metropolitan areas like London. There is a big problem there that
we need to address; it is not an easy problem.
Q10 Mr Thomas: Staying with prosecution
rates, are you able to compare your success rate—if I can
put it that way—with other prosecuting authorities. We have
this diagram of where you lie; we have DEFRA and local authorities,
customs and excise and so forth who also may prosecute for environmental
crime. Do you ever lean across and compare your success with their
rates?
Mr Navarro: We certainly keep
statistics about our success rate.
Ms Brosnan: Our success rate is
very good, particularly in waste and water quality prosecutions.
It is very difficult to read across to other prosecuting bodies
because the Environment Agency prosecutes 90% of environmental
crime.
Q11 Mr Thomas: So even though on this
diagram you look like 10%, you are doing 90% of prosecutions.
Ms Brosnan: In terms of prosecutions,
yes we are. It is very difficult to correlate exactly across to
other bodies because we keep our statistics in different ways.
However, our success rate is particularly good.
Q12 Mr Thomas: Is that, in your opinion,
because other bodies have a very different approach to prosecution?
Mr Stott: No, we follow the same
criteria and guidelines as all prosecuting bodies which is the
Attorney General's guidelines. In terms of comparison, for example
with the CPS, it is a false comparison. CPS are dealing with thousands
of cases a year; we are not, nothing like it. The best comparator
is probably the health and safety executive. They take around
the same annual number of cases as us. I do not know what their
figures are, but on our figures on contested cases we lose around
5%. So you could say our success rate is 95% I suspect it will
be very comparable with health and safety because, as I say, we
are following the same criteria of evidential sufficiency and
public interest.
Q13 Chairman: You have just said that
you were responsible for 90% of the cases.
Mr Stott: For Environmental crime.
Q14 Chairman: So your reference just
then to customs and excise doing roughly the same amount of prosecutions
. . .
Mr Stott: I do beg your pardon,
the Crown Prosecution Service, who are not on our chart, as a
success rate comparison. To answer the question: how many do the
Crown Prosecution Service lose, for instance, compared with how
many do we lose, I think they lose far more because their scale
of case load is massive compared with ours; it is in the multiple
thousands.
Q15 Mr Thomas: Do you only prosecute
those cases that you are almost sure you will win?
Mr Stott: No. The guidelines are:
is there a realistic prospect of conviction on the evidence that
you have? Can you assess it in terms of: is it more likely than
not realistically that you would obtain a conviction? If the answer
is yes, you take it; if the answer is no, you do not. Then, is
it in the public interest here, is it right, is it worth spending
the money to bring this case?
Q16 Mr Thomas: Just to go back a little
bit, does public interest include the interest of companies who
are legitimately trading in that field and need to protect their
business?
Ms Brosnan: Yes, it does. Can
I make the point that when we prosecute we do routinely bring
to the attention of the court the saving that would have been
made by the illegal operator in not obtaining the licence and
the fact that the illegal activity undermines the regulated industry
who are paying those fees and are abiding by the terms of their
licences.
Q17 Mr Thomas: We have had some evidence—for
example from the Law Society—that you and other prosecutors
in the field of environmental crime may lack some of the necessary
powers in dealing with offenders. Would you agree with that evidence?
Can you identify where you would like to have different or more
powers to take forward other prosecutions?
Mr Navarro: I think on the whole
we do consider our powers reasonably comprehensive. We do have
quite extensive powers. We have submitted evidence about additional
powers.
Mr Stott: Yes, annex eight is
a truncated list of some elements that we would like to see changed.
We cannot stop vehicles, for instance; we cannot stop the lorry
that is carrying something suspicious without police involvement.
We have no powers of detention other than very limited powers
for poaching between nightfall and dawn. During those hours of
the night our bailiffs are designated as constables.
Q18 Chairman: How many cases of poaching
do you deal with?
Mr Stott: About 50 a year, but
please do not underestimate poaching. Poaching is a very serious,
lucrative and violent vicious area of work. There is a lot of
risk attached to the bailiff because the gangs are very highly
organised; there is a lot of money in it. We have to be very careful
because there is a considerable health and safety aspect for the
officers involved.
Q19 Mr Thomas: In our inquiry we obviously
need to look at the other authorities and how they prosecute.
In terms of your own staff, can you say something about the training
that your staff receive and whether you are convinced that you
always have the right staff in the right place, at the right time,
with the right qualities and training to convince that bench of
magistrates or to take forward the prosecution at the right level?
You are a large Agency within England and Wales, are you convinced
that all your staff have a consistency of approach in that regard?
Mr Navarro: Can we distinguish
the operational staff, the technical staff whom Arwyn can talk
about, and then we can speak about the training of lawyers.
Mr Jones: Certainly in terms of
the operational staff we responded to feedback some four years
ago and had implemented in the Agency a warranted officers scheme
which requires our officers to go through a scheme of competency
training which is logged, tracked and reviewed periodically. For
our fishery staff that is reviewed annually; for our environment
protection staff that is reviewed every three years. Quite recently
we put in place the means to actually help staff locally check
with their line managers that those competencies are still up
to date and also to make more accessible the training materials.
We are using new technology such as on-line assessments. In addition
to that we have a very comprehensive induction scheme now where
we tend to batch recruit new Environmental Agency officers into
the Agency and they go through a six month induction programme
before they are allowed to actually join a team going forward.
I think we feel we have much stronger processes in place now to
get the training right and we have actually got a supporting suite
that is there through the working life of an environment officer
to keep their skills refreshed, but also to update it because
we ever new burdens of duty coming at us which bring in new enforcement
requirements. The Reservoirs Act is coming out and we shall have
some slightly different enforcement angles. Emissions trading
will bring in some new enforcement skills. We need to keep up
to date with those as well as the more traditional field activities.
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