Examination of Witnesses (Questions 60-79)
22 JANUARY 2004
MR RIC
NAVARRO, MR
DAVID STOTT,
MS ANNE
BROSNAN AND
MR ARWYN
JONES
Q60 Paul Flynn: You mentioned the good
work you do with magistrates in training but I understand there
is not the equivalent amount of training to the Crown Court. What
have you done to address that?
Mr Stott: We have mentioned this
to the Attorney General. We see the Attorney every quarter or
every four months with a case list of our most important or serious
cases. We have raised this issue of sentencing with him and he
is prepared to help us to get an introduction into the Judicial
Studies Board and to try to get a slot in their training agenda
on environmental crime.
Q61 Paul Flynn: You mentioned the Milford
Haven case. As you will recall, the original fine was four million
and achieved great publicity. It was then reduced on appeal to
three quarters of a million. One of the reasons for reducing fines
is that the courts decide that the offence was not a malicious
one. One presumes that if they are acting on behalf of the community
they should be fining them as a deterrent and because of the extent
of the damage done (which was enormous in the case of Milford
Haven and four million would seem to be a very light fine). Do
you think this is a sensible way forward, if courts are going
to reduce the fines in that way?
Mr Stott: That is why we are very
keen to try and get some form of tariff set by the court of appeal.
These massive swings are very difficult to juggle with.
Q62 Paul Flynn: It is hard to see that
this type of offence would be done maliciously or deliberately.
Mr Stott: That is right, but I
cannot impress enough the scale of some of the waste disposal
operations. You are talking about thousands of tons from new construction.
Twenty, 60 wagon loads suddenly appearing, very well organised,
dumping it quickly—it does not take long—and away.
These are well organised operations and there is a lot of money
involved here.
Q63 Paul Flynn: We have had some references
to the desirability of you producing and making public a database
of the environmental prosecutions and sentences. Are there any
plans to publish this?
Mr Navarro: We do publish our
Spotlight publication. I think you are referring to a database
to try to capture the whole of environmental crime. We are going
to be able to do something in relation to fly tipping.
Mr Jones: In relation to one facet
of environmental crime which is fly tipping, in discussion with
DEFRA and with local authorities, we are developing a database
which is intended to go live from this April. We will log all
instances of fly tipping and the local authorities will also be
doing that. This will give us, for the first time, a picture of
what is going on nationally in relation to fly tipping.
Q64 Paul Flynn: How do you disseminate
that?
Mr Jones: Under the Antisocial
Behaviour Act the minister will be able to require reports on
that, and both ourselves and local authorities will report from
that. I am not quite sure if we have decided yet whether we are
going to publish ourselves from that database, but it will be
in effect an incident database—reports of fly tipping—so
that we can actually build that picture up for the first time.
That will give us a much better picture of the scale. Is it increasing?
Really increasing? If so, what types of fly tipping, what types
of materials are being fly tipped? There will also be an indication
of how much it is actually costing to clean that up.
Q65 Paul Flynn: Is this extended to other
environmental crimes?
Mr Jones: Not at this stage, no.
Mr Stott: That would be a large
operation and takes you into other territory because there are
a lot of other regulators dealing with environmental crime—drinking
water pollution, et cetera—and we all collect our
data in different ways, regrettably. Undoubtedly if it could all
be corralled and brought into one that would be beneficial, but
I would not underestimate the kind of scale of task involved in
doing that. However, it does lead on to interesting questions
once you have got that into the Environmental Agency's hands.
Q66 Mr Thomas: I just want to return
briefly to this idea of malice because that is not a feature of
the actual environmental legislation, is it? That is a concept
that the courts have introduced. Am I right in thinking that?
Mr Stott: Most of our offences
are strict liability. They have to prove that company A has caused
an offence to occur.
Q67 Mr Thomas: When this happens in the
court of appeal, this idea of maliciousness, what happens?
Mr Stott: They look closely at
negligence, recklessness, poor management et cetera. All those
elements are looked at, but we do not have to establish "You
did knowingly".
Q68 Mr Thomas: Why then do you think
the Court of Appeal somehow introduced this concept into it?
Mr Stott: They look at fault.
They are looking to see what is the degree, the element of fault,
that has led to this particular incident occurring. Is it just
carelessness? Is it pure accident? Is it deliberate or whatever?
Q69 Mr Thomas: But in the court system—which
I think we can already see from this first evidence session—which
is not necessarily imposing high enough fines in the first place,
we then seem to have another step backwards at an appeal level.
Many would say in the Milfordhaven case that four million pounds
was peanuts compared to the cost to tourism and the environment
and everything that happened in Pembrokeshire, West Wales at that
stage. Would you agree with me—from what we have seen at
this evidence session—that we have two stages here where
there is a problem. One is where the fines in the first place
are not necessarily high enough to act as a deterrent and to alert
the company in a corporate way. Secondly, there is this extra
element—which I agree is there within the appeal process
anyway—of taking down the fines yet another level. Putting
those together, environmental crime is not getting its just desserts.
Mr Navarro: I could not disagree.
I certainly do agree.
Q70 Mr Challen: On the question of fly
tipping, do you have a fly tipping hotline or something like that
so that the public can contact you directly?
Mr Jones: We do have a standard
emergency number for people to contact us.
Q71 Mr Challen: Where is it publicised?
Mr Jones: It is publicised as
part of our Environmental Agency hotline. It is published through
local authorities and libraries quite widely. The thing to bear
in mind about fly tipping is that the majority of fly tipping
is the responsibility of the local authorites. There are split
responsibilities with local authorities there and the focus for
ourselves is really round the hazardous waste side, the organised
crime involvement in fly tipping. Nevertheless, if we do not believe
it is for ourselves to deal with, then we would pass that on to
local authorities and we are currently reviewing the protocol
we have for that.
Q72 Mr Challen: There is room for confusion
there for the public. They might want to report it to the police,
for example, so there is another agency involved.
Mr Jones: I think that is fair
to say, and we are aware of that.
Q73 Mr Challen: What evidence is currently
being put before the courts so that they can fully assess the
appropriate fine? How do you put it in the wider context of environmental,
social and economic damage?
Mr Navarro: I think it is important
to realise the role of the prosecution in terms of putting evidence
in front of the court. We are not there to achieve a particular
penalty; we are there to lay the information in front of the court.
Ms Brosnan: It is very difficult
to get into socio-economic factors because the courts are wanting
to sentence on the basis of actual harm and actual risk, matters
that we can prove to them by evidence and if they are disputed
could be tried and resolved by evidence. If we put evidence of
harm, we can put evidence of impact on a business before the courts,
we will do those things. In the environment there may not be victims
but we can say that there is fish loss, that there is potential
damage to otters, for example. We have examined otter spraints
to show that a particular chemical may have an impact on an otter
community. We do try to put as broad a spread of information as
we can before the court, but it has to be very factually based
for them to sentence on it.
Q74 Mr Challen: What sort of weight would
they put on the risk of harm as opposed to actual harm? Does that
carry a lot of weight with them when sentencing?
Ms Brosnan: They are used to dealing
with issues of risk, for example with dangerous driving, you do
not have to spell out all of the risks associated with a particular
course of conduct. With environmental offences you possibly do
have to spell out some of the risks because they are not as conversant
with them. However, you cannot be too hypothetical in your suggestion
of risk; you have to be able to produce evidence to substantiate
it and sometimes we have to do modelling to indicate that a particular
outfall might spread over a particular area. It has to be based
on fact.
Q75 Mr Thomas: Is loss of amenity relevant
then? For example, if a river has been polluted it means that
you cannot enjoy that river. Can you show that?
Mr Stott: Yes, that would aggravate
the case, aggravate the sentence. It should do, yes.
Ms Brosnan: If it is in a public
area and it passes a school, that would be a more aggravating
feature.
Q76 Mr Challen: What is a typical reaction
from a sentencing court to environmental and sustainability principles?
Do you think they actually grasp the importance of these principles?
Mr Stott: I think very much so.
Certainly at magistrates' court level it is. If it is their local
river or local playing field that has been dumped on and the impact
that would have is not lost on them by any means.
Q77 Chairman: Going back to the question
of the database, I think, Mr Stott, you were saying that is it
very difficult to do a comprehensive database because there are
so many different agencies involved and you all collect information
in different ways. Why can you not produce your own database for
the cases which you have been handling?
Mr Stott: We do. We have our own.
Q78 Chairman: Is that the same as Spotlight
or is that something else?
Mr Stott: Spotlight feeds
out of the national enforcement database which is a computerised
system which collects all the data with the names, with the offences,
with the penalties, et cetera. Spotlight feeds off that,
that is where the information comes from, but in our database
we are not collecting the same information that the other organisations
are collecting.
Q79 Chairman: Is your database in the
public domain? Do you publish it?
Mr Stott: No, we do not.
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