Examination of Witnesses (Questions 240-259)
12 FEBRUARY 2004
MR KEIR
HOPLEY AND
MR PAUL
MCGLADRIGAN
Q240 Mr Challen: There is nothing there
for environmental crime. Do you think there is a case that there
should be?
Mr Hopley: I am not sure why environmental
crime should require specific minima when most other crimes do
not. I think where I struggle is in seeing where an environmental
crime is different in the generality of the overall principles
of the criminal law. I think ministers would want to see a good
case before they went down that road.
Q241 Mr Challen: I wonder, Chairman—this
is in response to an earlier question about exceptional summary
maxima—if we could have a note perhaps on the details of
those cases you mentioned where people do seem to be able to evade
these things. If we could have some information on those types
of cases, that would be very helpful.
Mr Hopley: We will do what we
can.
Q242 Chairman: I was interested in what
you just said about seeing environmental crime as indistinct really
from the generality of the rest of criminal activity. That begs
the question as to whether environmental crime exists in your
mind. Is not one of the features of this type of crime the very
high number of repeat offenders?—which tells us something
about the sentencing arrangements perhaps.
Mr Hopley: I think it possibly
does for some types of environmental crime. I think one of the
problems that the bedevils the criminal justice system as well
is repeat offenders generally and I think you would find if you
looked at it an awful lot of repeat shoplifters and repeat thieves
and repeat burglars as well. One of our constant struggles is
to try to deal with that. The Government has put in place a number
of measures to enable that to be done. Certainly, were there to
be a case for doing something differently here, then I am sure
ministers would be very keen to look at it. It is a question of:
if one looks at any particular type of crime, one can always find
distinguishing features for that crime, but if one is trying to
maintain the overall level of penalties in a coherent framework
across the piece, then one has to look at it in that context as
well.
Q243 Paul Flynn: The Local Government
Association and the Environment Agency both say that deterrence
in sentencing is vitally important but it is hardly mentioned
or given priority in your submission. I am wondering if you regard
the sentencing system as being more to punish than to deter, because
both the Local Government Association and the Environment Agency
said the present sentencing system is hardly any deterrent at
all.
Mr Hopley: The Criminal Justice
Act 2003 lays down five purposes of sentencing: punishment; reduction
of crime, including by deterrence; reform and rehabilitation of
offenders; protection of the public; and making of reparation
by offenders to persons affected by their offences. So it is one
of the purposes but only one of those purposes.
Q244 Paul Flynn: You say in your memorandum
that the chances of being caught and prosecuted are probably more
of a deterrent than the sentence given. How can this be? Having
seen the figures you give for present sentences and the way
they are distributed—84% fines and 14% conditional discharges—how
can a court appearance be a deterrent when the sentences are slight
or non-existent?
Mr Hopley: The point we make in
the memorandum about deterrence being important is in relation
to criminality generally. I am afraid I have no evidence either
way as to whether that would apply more or less or the same to
environmental crime. I think one has to look—as the court
is doing when it is making its decisions on sentence—at
the circumstances of the offender. If it is a multinational corporation,
clearly £20,000 is not going to do very much to get at it;
if it is an individual or small business, then fines running into
thousands of pounds may have an effect.
Q245 Paul Flynn: You helpfully give in
your memorandum the various grounds thereof for reducing a fine
or commuting a custodial sentence to a fine or getting an absolute
discharge. Do you think there are so many chances of sentences
to be reduced that the deterrent effect is pretty much negated
anyway?
Mr Hopley: I think there are chances
for sentences to be reduced; there are chances for sentences to
be increased as well. It depends on the circumstances of individual
offenders and how the courts see those.
Q246 Paul Flynn: Do you think the punishment
fits the crime now? You have mentioned large companies, and
we have the example of the Milford Haven case where a fine of
£40 million was reduced to £0.75 million. Is it the
case, do you think, that wherever discharge takes place, frequently,
dealing with individuals, it is because of lack of means and the
situation is that the sentence does not so much fit the crime
as actually fit the criminal, the person there. Do you believe
that sentences, particularly the ones for corporate offences—for
the multinational companies more than individual cases—should
be much higher than they currently are, if they are going to be
a deterrent to other multinational companies?
Mr Hopley: It is difficult for
me to comment on individual cases. There is a guideline judgment
which is used by the courts. It is a Court of Appeal judgment
in the case of Howe & Son which made it clear that
a fine should be sufficient to cause a real penalty for the company—not
just for the managers of that but to make the shareholders aware—but
not so severe as to result in bankruptcy or loss of jobs. It is
for the court to make those decisions in individual cases and
it is very difficult for me to second-guess what those may be.
Q247 Paul Flynn: We have had near unanimity
of views from these bodies, the ones I mentioned earlier, saying
that the fines and punishments were insufficient, inadequate.
Do you really think this is a cause for anxiety?
Mr Hopley: I think it is a cause
for anxiety if a number of respected organisations are suggesting
that penalties are genuinely inadequate. I think I lack—and
I would be interested in the extent to which they lack as well—the
detail in those individual cases on which they are commenting.
A lot of work is being done by colleagues in DEFRA to try to make
sure magistrates and others are fully aware of the importance
of the offences, and I think we need to keep doing that to make
sure the courts and others are fully aware of the potential impact
of some of these offences.
Q248 Paul Flynn: The figure you give
for the number of offenders who receive an absolute or conditional
discharge is 14%. This seems a high figure, knowing the number
of cases which never actually get to court anyway. Is this a high
figure? Is it peculiar to environmental crime or does it apply
to other areas of crime?
Mr Hopley: I do not have that
figure with me. My guess is that it is not that different.
Q249 Chairman: Perhaps you would like
to give us that later.
Mr Hopley: We can write to you
with that.
Q250 Paul Flynn: On the matter of sentences,
do you think there is scope for having sentences such as ones
that would make the offender remedy the position, in a very direct
and relevant way: to clean up the graffiti or the fly-posting
and so on? Do you think there is leeway for that?
Mr Hopley: Yes, I do. There are
some powers already available for that. The Environment Agency
has various powers to require remediation, I think, for things
which are environmental offences but very much on the antisocial
behaviour side as well. If there are repeat offences, where offenders
really are creating a social nuisance and the accumulation of
those offences and the seriousness is such as to get them into
the community penalty bracket, then I think putting those offenders
to work in graffiti cleaning or whatever is an excellent use of
that sentence and a number of probation areas have work parties
dedicated to that sort of activity.
Q251 Paul Flynn: This is an aspiration,
I presume. I do not recall seeing remediation mentioned in your
document.
Mr Hopley: It is not.
Q252 Paul Flynn: Is it used to any significant
degree?
Mr Hopley: I would need to consult
DEFRA on that and come back to you. There tend not to be powers
within the criminal law, but the various enforcement agencies
on the pollution and waste side have powers to require companies
or individuals to rectify the nuisance they have caused, rather
than that being a criminal sanction.
Q253 Chairman: Could I return to an issue
raised by Mr Flynn's questions. You have said that you are concerned
if respected bodies such as local authorities and the Environment
Agency are anxious about the nature of the level of sentencing
being handed out. But this is not a particularly new issue. There
has been comment, adverse comment for some time, I think, from
some of these respected bodies about it. If the Government is
so joined up in its approach to these matters, why is nothing
being done about it?
Mr Hopley: I am not sure that
nothing is being done, with respect, Mr Chairman. We have the
new penalties at the lower level which give local authorities
additional power in terms of fixed penalty notices for graffiti
and the like. We are also looking to see if more offences would
be capable of being dealt with in that way. There is a cross-Whitehall
review going on where departments have been asked to submit proposals
to us and that period for submission has just closed and we will
be reviewing those offences. It may well be that there will be
some that fall within this environmental area that will fall within
that ambit. In terms of views on sentencing generally, it is not
uncommon for there to be views either one way or the other that
sentencing is too harsh or it is too lenient in all types of crime.
When those concerns come from reputable, serious organisations,
one has to look at those and keep them in mind. The mechanism
is that DEFRA is the lead body, the lead department, on most of
the policy in this area. If there are things they believe should
be changed in terms of penalties, then they will come to the Home
Office and ask for that to be done, and Home Office ministers
will then look at it and a collective government decision will
be made.
Q254 Chairman: Have they made representations
of that kind?
Mr Hopley: There were representations
which led to some of the powers in the Antisocial Behaviour Act.
I am not aware of any other current ones, though, as I have said,
there is the review of fixed penalties currently underway.
Q255 Mr Challen: You said in your last
answer to Mr Flynn that there are other ways of pursuing matters,
particularly with companies, outside the criminal context. What
are those ways? Secondly, should they not perhaps be incorporated
into criminal law? Are we talking, for example, about individual
bodies having to go out and sue a company to obtain some kind
of result?
Mr Hopley: No. Of course the civil
law penalties would be available. If there were an individual
victim, someone who had perhaps suffered particularly because
of an act of pollution, it would be open to that individual to
sue the company concerned for civil damages. I was more thinking
in terms, as I have said to Mr Flynn, of the powers that the Environment
Agency or the water pollution people have to require companies
(a) to stop polluting and (b) to put right the damage they have
caused. My understanding is that those powers tend to be used
quite a lot in terms of individuals or various small companies
who offend infrequently, inadvertently without a huge amount of
culpability. The bodies will have to decide in each individual
case whether that sort of remedial action is sufficient or whether
the public interest requires a prosecution to be brought. Certainly
in serious cases, in cases with a large degree of culpability,
then one would expect a prosecution.
Q256 Mr Challen: How many of those cases
might there be?—not the ones which go to prosecution but
the ones that are sorted out, as it were, in the first step.
Mr Hopley: I would need to check
and come back to you on that. There is not comprehensive statistical
information available, though DEFRA are working on a database
that will have environmental offences which is due to come into
operation later this year, but we will look at what we have and
come back to you.
Q257 Mr Challen: Do you think there is
a case that more of those should go to prosecution? Following
on from that question, should magistrates have more alternative
sentences available, so that they have a broader range of punishments
or the ability to seek remedial action. I notice that 84% of cases
which go to magistrates courts end up in fines, so they do not
seem to be using alternative ways of dealing with environmental
crime.
Mr Hopley: I think there are several
issues on that. The first issue is whether more cases should go
to court. It depends on what the objective is. If the agency,
be it the Environment Agency or a local authority, believes that
the degree of culpability is not large and that it can get a satisfactory
result just from remedial action, then it is difficult to know
what else would be added by going to court. If, on the other hand,
a public point needs to be made—there is a clear public
interest to secure a prosecution, perhaps to secure some adverse
publicity for the individual or the firm involved—then I
think it is right that that should go to court. Costs may be an
issue but the prosecutors do have the ability to ask for their
costs and perhaps should be a little more robust in doing that.
As to the sentences of the court, the Sentencing Advisory Panel,
when it looked at this area and very recently issued Magistrates'
Association guidelines, said that the fine will be the most appropriate
sentence for cases of this nature, so it is not surprising that
something like 80% end up with fines. Where there are more serious
offences, then community penalties and in some cases imprisonment
are available.
Q258 Mr Challen: Looking at what might
be described as the bottom end of the scale, say, for example,
unemployed people, people on benefits, they are obviously getting
stung with fines as well when they commit environmental crimes.
Do you think there should be more alternative sentences available
for those people, which may focus more on remediation, for example?
Mr Hopley: Yes, I do. Indeed in
the Courts Act 2003 there are provisions which we will be piloting,
starting in April, to enable those who, as it were, can't pay
rather than won't pay to discharge their fines by doing unpaid
work in the community. Those pilots are going to be taken forward
with voluntary organisations. For the people who genuinely cannot
afford to pay, I think that sort of disposal would be ideal in
these cases. There are other possibilities that the courts have
available to them. For example, they can now impose driving disqualifications,
which, if someone is repeatedly using a van to dump things may
well be appropriate or—and again it has to be proportionate—there
are those powers to seize what are called, in a rather ugly phrase,
"instrumentalities of crime". If, for example, a van
were being used repeatedly to commit offences then the court would
have available to it powers to confiscate that. Perhaps there
is scope for courts to think a little more imaginatively in some
ways as to what they might do in that sort of area.
Q259 Mr Challen: Do you think there is
any kind of learning from the experience of drug treatment orders,
where instead of having a custodial sentence, for example, people
are forced to go through a period of drug treatment and testing
and so on? We could have the same sort of thing here, could we
not? Are those things being discussed in other contexts like environmental
crime?
Mr Hopley: That is a very interesting
comparison. I thought when you started the question, Mr Challen,
you were going to ask about specialised benches, because that
is something—
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