Examination of Witnesses (Questions 120-139)
29 JANUARY 2004
MS RACHEL
LIPSCOMB AND
MS ANN
FLINTHAM
Q120 Mr Challen: And you
do not have any discretion about that at all?
Ms Lipscomb: No,
that is what Parliament has set. They all vary; from £2,500
up to £20,000.
Q121 Mr Challen: Do you
think the Magistrates' Association would want to have extra discretion
in this regard?
Ms Lipscomb: The
difficulty would be the pressures on the probation service at
the moment. Getting enough supervision, getting the range of community
penalties, is really quite tight.
Q122 Mr Challen: Do you
have any views as to what should happen to money received in fines
for environmental crime? Do you think it should be, as it were,
hypothecated to deal with the problem or are you happy to see
it all go into the general pot?
Ms Flintham: We
had brief discussions on this. I do not think we have canvassed
our members about it. It may well assist us if the money did go
back into environmental projects or of that nature. It might raise
the profile.
Ms Lipscomb: Coming
back to the large companies and the small operator, the awareness
by the public of what particular companies have done to repair
damage caused is an important element alongside the penalty. Possibly
larger companies should be required to comment in their annual
report on this.
Q123 Mr Challen: That
would be as a requirement?
Ms Lipscomb: Yes,
as part of the environmental audit on the damage caused.
Q124 Mr Challen: That
would also have to apply to quite a lot of other areas as well,
perhaps health and safety and so on, would it not?
Ms Flintham: Environmental
crime covers a huge amount of legislation covering all sorts of
different things.
Ms Lipscomb: Is
it worth thinking with the larger companies on how to educate
the shareholders? Have they an interest in this?
Q125 Mr Challen: They
are the owners of the company. Should they also be punished along
with the company?
Ms Flintham: They
should certainly be aware of their responsibilities, which I do
not think some of them are.
Q126 Mr Challen: How would
you make them aware of that? Would that be in the annual report
or in a special report, or perhaps a public declaration in a newspaper,
as sometimes people are forced to advertise things in the classifieds,
as it were?
Ms Lipscomb: I
think probably in the annual report and at the AGM.
Ms Flintham: With
special undertakings so that they know exactly what they are responsible
for.
Q127 Mr Challen: But that
would often be 18 months after the event and it might not be topical
any more.
Ms Flintham: Better
late than never, though.
Q128 Chairman: The problem
with that point is that it only deals with the larger companies.
As you have already suggested, a lot of smaller companies are
creating quite a lot of the harm.
Ms Lipscomb: Yes.
Local press, local radio and local television are quite powerful
tools in that, I think.
Q129 Mr Challen: Perhaps
that could also be on your website. It could be part of the Costing
the Earth process that you yourselves as magistrates can list
cases.
Ms Lipscomb: There
are one million plus cases going through the magistrates courts
all over the country in 365 courts. We would not be aware of individual
cases.
Q130 Mr Challen: I take
it there is nowhere at present where this information is publicly
obtainable in a fairly easy way?
Ms Lipscomb: No.
If you can get Research and Development Statistics from the Home
Office to break out the case, then you would get it.
Ms Flintham: It
may well be the case that the prosecutors, when they are successful
in a case, should do more to publicise what has happened. Certainly
I think in local newspapers some of the local authorities have
been successful in getting quite a lot of media coverage, and
that is sometimes a way to get through to the smaller individuals
who are not complying.
Ms Lipscomb: And
that is a way of alerting the public to be on their guard or actually
to report other incidents.
Ms Flintham: You
have a good example, have you not, with abandoned cars in that
that it certainly has become a major problem for all sorts of
people especially in terms of local authority's time in clean-up.
Abandoning a car is antisocial behaviour; it brings down an area;
people do not like it; it causes problems with the fire services;
and children can be injured playing in the cars. There has been
a lot of publicity about that. There is much more awareness of
abandoned cars and local authorities are taking action and doing
something about it now. That is a classic example of where you
can raise awareness and perhaps bring about some changes by different
people working together.
Ms Lipscomb: The
other place you could raise awareness is through the education
system in the primary schools. Younger children are probably much
more sensitive to and aware of environmental issues than two generations
above them. Messages going back through the families that way
have a real effect.
Q131 Chairman: I think
we would all agree that education has a hugely important role
to play in achieving all sorts of sustainable objectives. Can
I bring you back to what happens in court? Would you care to compare
and contrast, in the light of your experience, the prosecuting
skills of the Environment Agency on the one hand and local authorities
on the other?
Ms Lipscomb: I
think that is variable, to be fair but the Environment Agency
has now trained prosecutors and put a lot into that. Some local
authorities have prosecutors who are good in particular areas
but do not have the training in other areas.
Ms Flintham: May
I concur with that from my own experience? The local authorities
are just beginning to work on their prosecutors and I have noticed
a better standard of prosecution when they brought their cases
into court.
Q132 Chairman: The local
authorities themselves, in a recent survey, seem not to be wholly
convinced that the courts understand environmental issues. I think
20% said that the courts did not understand environmental issues.
Do you think that is fair?
Ms Flintham: I
do not think it is fair, no. One of the issues for local authorities
is to get very cross with magistrates because we do not reimburse
all of their costs. Local authorities tend to have quite high
costs. As Rachel Lipscomb has said, in terms of sentencing, we
tend to put the reparation and fining perhaps ahead of the costs.
I think that is a problem for local authorities; they do get very
irritated when we do not give their costs in full figures. That
is a difficulty for them. We appreciate that it is costly for
them to bring a prosecution, and quite often courts are the last
resort for local authorities. They have tried lots of different
ways to get that particular company or person to comply and they
will have spent an enormous amount of time and resources on that
before it comes to court. We have a problem of trying to sentence,
as Rachel said, according to someone's means and trying to share
the pot accordingly. Costs tend to come at the bottom. That might
be the local authorities' perception of us not understanding the
crime.
Q133 Chairman: I think
they are concerned that you do not seem to be able to assess an
appropriate level of fine.
Ms Lipscomb: That
is entirely dependent, first of all, on setting the seriousness
of the offence. To set the seriousness of the offence, you have
got to know: what that particular offence has meant in terms of
damage, danger or risk of harm; what the costs of repair have
been to the local authority or to any other organisation; what
has happened in the context of other events that have gone on
before; whether there have been previous warnings; whether there
have been previous prosecutions; what profit has been gained by
offending, because often there is a profit involved; and what
they have saved by not complying. A prosecutor really also needs
to give the local picture as to what other problems there have
been in the area and whether that has a particular relationship
to this offence.
Q134 Chairman: Is it possible
to provide us a typical example of how environmental principles
accord?
Ms Lipscomb: They
will depend entirely on the offence. The difficulty is that they
can be quite sketchy.
Q135 Chairman: To what
extent is the risk of harm taken into account?
Ms Lipscomb: If
it is given or it is asked for and there is an indication, it
would be taken into account alongside the seriousness of the offence.
Q136 Chairman: Do you
regard that as an important aspect in these cases?
Ms Flintham: Yes,
if it was a case of pollution of air, for example, then obviously
that would have quite long and far-reaching consequences.
Ms Lipscomb: The
risks could be almost as high as somebody actually being affected
by it.
Q137 Chairman: Are you
able to offer any specific examples, and I know it is difficult,
off the cuff? Can you think of any specific cases where the risk
of harm has been a material factor in the court's judgment?
Ms Lipscomb: Certainly
you get it with pollution.
Ms Flintham: In
food health there is a knock-on effect, perhaps even fatalities
of human beings if there is food poisoning; that would be far-reaching.
Ms Lipscomb: Another
example is the use of asbestos, and it could apply to water pollution
and gases when you have materials being dumped, any of those sorts
of offences.
Q138 Sue Doughty: I would
like to go back a bit to guidance in sentencing. We had quite
an extensive period of looking into Costing the Earth and
how that was working. I am interested in that. We have talked
a bit about it and there was a general feeling that it was moving
up in terms of the magistrates' awareness and sentences passing
down, although in fact the Environment Agency has said to us that
average fines are only rising very gradually and that, in relation
to high value, repeated, unlawful activity such as illegal fly-tipping,
it was felt that there was no deterrent. We talked about possible
deterrents. I am interested to hear if it would be possible or
sensible to set up sentencing structures for some of the most
common crimes, such as statutory nuisance, water pollution and
waste offences, so that we are really using formulas much more.
Would that help accelerate this process of putting proper fines
in that would be a deterrent?
Ms Flintham: The
difficulty is that the fine always comes back to the means of
the offender, and we cannot get away from that. We have to abide
by that in terms of imposing a fine that has to be payable within
a period of 12 months. We have to look at collecting that. I do
not think it is any secret knowledge that there is a real difficulty
in collecting fines. That is part and parcel of the sentence,
that if you impose a fine, it is really important that the person
pays the fine. Currently, at the moment, I think only about 50%
of fines are being collected. This is not only about imposing
the fine but making sure that that person pays the fine.
Q139 Sue Doughty: Is that
true also of some of the other things you discussed, such as remediation,
actually getting them to carry out the work or do community service
or other forms of sentence, are more successful in terms of working?
Ms Lipscomb: We
would only be talking about it at the low scale and, yes, on the
whole that work is carried out. The difficulty with the fine,
coming back to that again in your question, is that it may be
that the courts have been made aware that £30,000 or £40,000
has actually been spent on repairing the damage or putting in
new equipment; that will affect the ability of somebody to pay
a financial penalty on top. It would rate quite highly in the
court's mind if the situation had been reversed or it had been
stopped and that it was not going to cause a further offence.
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