Examination of Witnesses (Questions 20-39)
22 JANUARY 2004
MR RIC
NAVARRO, MR
DAVID STOTT,
MS ANNE
BROSNAN AND
MR ARWYN
JONES
Q20 Mr Thomas: When was the training
of warranted officers introduced into the Environmental Agency?
Mr Jones: In 2000. The three year
review for our EP officers is actually in play now. It does not
happen on day one, there is a six month period whilst that is
happening. Our fishery staff go through an annual review to check
that their competencies are still up to date before they have
their warrant renewed.
Mr Navarro: There are three strands
of training and experience in terms of calibre of the staff. There
is the technical capability as scientists on the technical side.
There is their industrial experience: have they got experience
of how it actually operates? Then there is their experience as
criminal investigators. Obviously they do not all need to have
the same sort of training as the criminal investigators, but by
a degree of specialisation we can improve and hone those skills.
I have to say that we have very dedicated and enthusiastic staff.
We have got these programmes, with secondments to industry as
well, to raise the general standard of staff over time.
Ms Brosnan: You mentioned the
Law Society's evidence earlier. There is a slight mistake that
they have made in the submission they have made. They say that
our prosecutions are dependent on convincing the Crown Prosecution
Service on the likelihood of conviction. That is not right; we
make our own decisions and we bring our own prosecutions.
Mr Stott: What happens is that
the potential offence is identified, the case file is put together
by the officer with guidance. That case file comes across into
the legal section. The presentation of that file in court is critical
for obvious reasons. All the elements have to be presented. In
2000 we developed and devised an advocacy assessment programme
whereby we have our own 40 advocates spread across eight regions.
The senior lawyer in ever region was to assess those going into
court and to go into court, and have a look at them. We took the
documentation from the Crown Prosecution Service Inspectorate
and adapted it for our purposes so we follow that documentation
material. That is what we have done to try to raise our game.
Q21 Mr Thomas: A lot seems to have happened
since 2000 so that would be welcome, I am sure, by this Committee.
From the Law Society's point of view are there any material differences
between the way the Crown Prosecution Service would approach a
matter like this and the way you in fact do so?
Mr Stott: No. The evidence is
the same. The evidential requirements are quite the same and the
techniques of advocacy are quite the same; they are common. Unless
you have covered those grounds, it does not matter what sort of
offence you are dealing with—environmental or ordinary crime—you
are not going to get anywhere. We have to have the basics covered
by all our advocates.
Mr Navarro: If we compare the
experience of SEPA where they rely on procurator fiscals to actually
take prosecution decisions and the system in England and Wales
where the Agency is able to take the decisions, the evidence,
I think, is quite strong that we are able to take more decisions
than we would if we had to rely on the Crown Prosecution Service
who would then—in the same way as the judges—be looking
at the offences in relation to ordinary crime. They may not realise
the significance of them as we do.
Q22 Mr Challen: In your memorandum you
say that the sentencing powers are broadly sufficient but the
sentences handed out are not. Why do you think that is?
Mr Navarro: It is important to
realise that, because of the spread of offenders there is the
need for flexibility at the one end for the pensioner who leaves
their bag of grass cuttings outside the civic amenity site because
it is closed, all the way through to the organised fly tipping
and organised criminals who are making great sums of money from
their activities. There is a very broad range of offences which
the courts have to deal with, but we come back, I think to the
lack of relative experience of individual magistrates in dealing
with these sorts of offences.
Q23 Chairman: Before you go on, can we
just establish that the pensioner who leaves his bag of grass
cuttings outside the site would not be prosecuted.
Mr Navarro: No, of course he would
not.
Ms Brosnan: The usual statutory
maximum for an offence in the magistrates' court is £5,000.
That is the normal maximum that magistrates would have to deal
with. In most environmental offences that maximum is increased
to £20,000 so magistrates have greater sentencing powers
for our offences—also for health and safety offences—but
they are perhaps not used to dealing with them. We have put a
lot of effort into the training of magistrates—we have addressed
magistrates at their annual general meeting; we have assisted
them in drafting guidance and training manuals for justices—so
that they feel more comfortable with the sentencing powers. The
Lord Chancellor has suggested to them that they should accustom
themselves to imposing much greater penalties than they are used
to, but I think they have perhaps taken a cautious approach to
sentencing with these extended penalties because they are perhaps
uncomfortable in using them, rather than saying that they do not
want to impose large fines for these types of offences.
Q24 Mr Challen: Have you picked up any
regional variations in sentencing or is it fairly uniform across
the country?
Mr Navarro: The magistrates have
now had the benefit of the guidance which was provided to them
in 2002 which we certainly welcome. It may be too soon to say
what the effects of that are. We would hope for an improvement
because they have guidance on entry levels. We think there are
variations. The report that was submitted to the Committee picked
up quite wide regional variations in sentencing.
Mr Stott: It is hard to explain
why that is. As I said, we are training magistrates throughout
the country but we cannot cover all of them.
Q25 Mr Challen: Would it reflect the
number of cases taken to court, for example? Are some regions
more precocious than others in doing that?
Mr Stott: In general terms the
weight of prosecution is in the north-east, north-west—where
the old industry is—and also down here in what we call the
Thames region. That is where the bulk of the case load is found.
It is generally waste featured cases.
Mr Navarro: I think in the report
submitted to the Committee there was a sort of perverse relationship
between the large number of prosecutions and the size of the fines,
which tended to be lower. It certainly merits more investigation.
Q26 Mr Challen: Looking at the guidance,
has there been any justification by either the courts or the Judicial
Studies Board as to why they have not provided more guidance,
other than to say that cases should be decided on their merits?
Mr Stott: The Judicial Studies
Board covers the training in particular of the Crown Court of
judges, as opposed to the Magistrates Association which covers
the magistrates' level. We have not yet been able to get a slot
in the Judicial Studies Board training of judges. Bear in mind
that their number of cases is very small compared to the number
that the magistrates are dealing with. They have a lot of training
to cover this year and in the year to come they will have even
more with the Criminal Justice Act and all the new changes coming
in. It is not easy to get ourselves a slot.
Q27 Mr Challen: What is your view on
the size of the penalties metered out to offenders? Judging by
the size of their organisation should large companies suffer larger
penalties? Should it be according to the ability to pay, do you
think?
Mr Navarro: I think if there was
specialisation that would enable more training to be given to
that cadres of environmental judges or environmental magistrates
because we are competing with very significant changes in the
criminal justice system each year and there are only scarce resources,
there are only a number of training days which magistrates have
available, so it is not surprising that we cannot train them all
up.
Mr Stott: If you nominated individual
magistrates—maybe two for each court area—and perhaps
a couple of judges on each circuit to deal with this and maybe
health and safety cases together, you would have a chance of a
form of specialism at no cost, without going so far as to suggest
an environmental court which would have bureaucracy attached to
it and would cost. I think that would be worth considering. We
are beginning to see the serious offences beginning to attract
more significant penalties, although there is an issue about the
size of those penalties if we are talking about very large companies
and whether—even at the quarter of a million mark—they
are significant.
Q28 Mr Challen: Should we go for penalty
fares?
Mr Stott: Yes.
Q29 Mr Challen: Or is it simply a sort
of slap on the wrist?
Mr Stott: The magistrates' guidance
says that the aim of their sentence should be for any fine to
have equal impact on the rich or poor. They say this is true of
companies as well as individuals. It has been difficult for magistrates
to sentence companies without possibly seeing the accounts and
seeing what money we are talking about in terms of turnover or
profit. There has been a recent case—the case of Howe—which
suggested that if companies are prosecuted, when they fall to
be sentenced by the courts they should produce their accounts
to the court so that the court can look at the profitability of
the company and try to make the fine have an equal impact on the
company as it possibly might on the individual.
Q30 Mr Challen: I picked up from your
memo that serious offences are attracting appropriately large
penalties despite variations on appeal. It appears that those
appeals are often successful so is this down to the legal team
of a large corporation that can bamboozle the appeal court judges?
Or do the appeal court judges feel that really this is not a terribly
serious matter in the first place?
Mr Stott: I do not think it is
that. I think the problem is more fundamental than that. This
is the point really, there is no yardstick, no guidance that has
been issued by the court of appeal—unlike in other types
of offending—as to where a sentencing court should start
to look in terms of the amount of the fine. When I sit—and
anybody else who is a magistrate here—I know that for an
individual offender the gravity of the offence is assessed, there
is documentation and then you look at the income and you are given
guidance only—it is not a directive—matching one with
the other. There is nothing like that for companies. We have asked
the court of appeal twice to consider possibly issuing some form
of guidance to those sentencing companies against the offences—against
the gravity of the waste disposal or the pollution of the river
or whatever—to give courts an indication of what bracket
the fine should fall in to. Is it based on turnover? Is it based
on profitability? What is it based on? They have shied away from
doing that and that is the problem.
Q31 Mr Challen: Do any of these cases
go to a jury trial and, if so, what kind of result does that produce?
I am thinking that there is a parallel here between this and libel
cases where guidelines have been introduced on how much you can
impose.
Mr Stott: That is right. There
are very few jury trials. The majority will plead at Crown Court
to get it over quickly. It is the adverse publicity aspect that
they do not want.
Ms Brosnan: The judge sentences
in our cases. I think juries fix libel damages whereas the judge
would sentence in our cases. And they are led by tariffs.
Q32 Chairman: Going back to the training
of magistrates and judges you were talking about, given the plethora
of criminal justice legislation—I have lost track of the
number of Home Office bills we have had in the last five years—is
it not always the case that these environmental issues are going
to come pretty low down on the pecking order? What realistic chance
do you think there is of getting the dedicated training that you
have been talking about?
Mr Stott: Environmental crime
has risen on the political agenda. Three years ago the Sentencing
Advisory Panel was created. It came in 1998-99 to give advice
to the court of appeal as to how to sentence all types of crime.
The first topic of its remit—the first topic of a new body
like that—was environmental crime. That, to us, was an indication
that environmental crime is of significance. Unfortunately, they
gave their guidance, they gave their criteria and they passed
it across to the court of appeal. We hoped that the case of Milford
Haven (which was the Sea Empress case where thousands of tons
of crude were spilt on the Welsh coast) was to be the vehicle
that that court of appeal would use to issue guidelines. The then
Lord Chief Justice felt that there was no need for any guidance
to be given so that opportunity went. However, that was the first
topic of a new body.
Q33 Chairman: Did you have a go at the
time of the Anglia Water case?
Ms Brosnan: We did, yes.
Q34 Chairman: With no success.
Ms Brosnan: The Court of Appeal
said they wished to see each case decided on its merits, on the
individual facts of each case. Going back to your point about
training, we do offer training to magistrates, evening sessions
for various benches. We find they pick up on it, they are very
interested and we get a very good turnout, but we do find that
we are competing with sessions on drugs for example, and they
are more likely to come across drugs offences than environmental
offences.
Q35 Mrs Clark: If we can look at the
sort of sentences that are actually metered out, certainly in
your evidence you seem to imply that for certain water companies—we
have just mentioned Anglian—and some of the larger waste
management operators, the actual length of sentence or type of
sentence does not really seem to be having the right sort of deterrence.
In your view should there be a sort of base line, average sentence
that you would like to see and that things should not fall below?
Mr Navarro: I do think the water
companies are increasingly taking their environmental record very
seriously.
Q36 Mrs Clark: Is it not rather patchy,
though?
Mr Navarro: Yes, it is perhaps
rather patchy and we have led evidence for alternatives which
may be more appropriate for those large corporations.
Ms Brosnan: Water companies are
concerned about their professional reputation and so the number
of offences they incur, the number of convictions they occur,
the cumulative penalties, their respective positions in relation
to each other do now concern them and they do try to avoid offending
to try to preserve their professional reputations. OFWAT, the
financial regulator, uses the breaches of their licences to record
their performance as a statistical measure now for their cost
pass through factor. That is of extreme concern to them because
if they are seen as a poor performer then they may not be able
to recover the same funds as another water company.
Q37 Mrs Clark: What role does, for example,
Water UK, play in setting standards and monitoring throughout
the companies?
Mr Navarro: They do look at the
performance measures of the water companies. In general it is
all part of a complex picture of levers that we are trying to
pull but we do give in Spotlight information on business
performance every year, and that has now become an established
date on the calendar when we try to present the good and the poor
performers. That is becoming of increasing interest both to the
business community and to the investment community as well because
increasingly—again in the interest of the city—they
can spot that well managed companies that do not pollute are more
likely to have a better financial performance. All those pressures
are increasing to drive company performance.
Q38 Mrs Clark: Is it not fair to say,
though, that some of the culprits do it again and again and again?
Is this because the sentences really are not high enough or because
they know they can get away with it and just will not get nicked?
Mr Navarro: We do nick them. We
do detect those incidents and we have a good record on that and
there may well be an element that companies get accustomed to
a certain level of tolerance of fines and the fines are just not
sufficient to really register with the boardroom. As we say, we
are showing evidence of higher fines for the serious and persistent
offenders.
Q39 Mrs Clark: I would have thought that
being named and shamed would be more of an off-putter than length
of sentence, particularly if it gets on the Today programme
or The Daily Mail or something like that. I can remember
some environmental culprits who have achieved just that, so to
speak.
Mr Navarro: That is true. Naming
and shaming is certainly effective, but of course we have to take
the cases, we have to get the fines before we can name and shame.
Mr Jones: In the waste management
industry there are also provisions round fit and proper persons.
Last year we introduced a more rigourous policy about how we assess
post-conviction status of somebody continuing to be a fit and
proper person. Following some big cases we are now putting in
quite a rigorous process of assessing whether the whole of that
waste management operator licence is still fit and proper to hold
that licence and we have powers there to either suspend or revoke
the licence as a result of that. That is specific to those who
hold waste management licences. It will not deal with those who
are fly tipping or in other industry sectors. This is another
quite powerful tool that we are making more use of than we have
in the past.
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