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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 126-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE ENVIRONMENTAL AUDIT COMMITTEE ENVIRONMENTAL CRIME SUB-COMMITTEE
Environmental Crime and the Courts
Thursday 29 January 2004 MS RACHEL LIPSCOMB and MS ANN FLINTHAM Evidence heard in Public Questions 89 - 166
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Environmental Audit Committee, Environmental Crime Sub-Committee on Thursday 29 January 2004 Members present Mr Peter Ainsworth, in the Chair Mr Colin Challen Sue Doughty ________________ Memorandum submitted by The Magistrates' Association
Witnesses: Ms Rachel Lipscomb, Chair, and Ms Ann Flintham, Communications Manager, Magistrates' Association, examined. Q89 Chairman: Good morning. Thank you for your memorandum, which is one of the briefest I have ever seen sent to any Select Committee inquiry. We are grateful to you for coming to flesh out some of the details that perhaps were not in what you sent to us. May I begin by asking you whether you have a kind of in-house definition of what environmental crime is? Ms Lipscomb: That is crime that has an impact on the environment and on people's quality of life and, to a certain extent, on safety as well. Most of the environmental crime comes to the magistrates courts in the first place; they really are in the front line for it. What we have been working towards is raising awareness but also improving the relationship and the understanding between the prosecuting agencies and the courts, because the courts are utterly dependent on the amount of information that they have in front of them. Because they tend to be strictly liability cases, the background, the big picture, is of great importance when it comes to sentencing. They may be a first time offender, so the impact of that first sentence is crucial. Q90 Chairman: What do you think the main aims are of the criminal justice system in relation to environmental crime, and also sustainable development? Ms Lipscomb: They are to prevent further offending. With regards to sustainable development, by the sheer deterrent nature of the offences, that is to deter people either through their work or social pastimes damaging the environment and putting at risk the future life and enjoyment or work situation of other people. Q91 Chairman: Do you think that retribution has a part to play in the process as well? Ms Lipscomb: I think in this case it is slightly different because we put great emphasis on the cost of compliance and the cost of clean-up rather than retribution. The financial consequences of a fine, making good and the maxim that the polluter pays, probably outweigh any consideration of retribution, deterrence being of greater importance. Q92 Chairman: Do you think, in relation to the aims that you have just set out, that the system is effective and working well? Ms Flintham: It is working better all the time and I think, as people become more aware of the importance of the environment and perhaps irreversibility and issues like that, things are improving. Q93 Chairman: In what way? Ms Flintham: I think because people are much more aware of the consequences of environmental crime, they take it much more seriously. I think there is a recognition that we do have to break the cycle, that we have to have deterrence in place, and make sure that it is not attractive to people to stay away from their responsibilities towards the environment. Q94 Chairman: When you say that people are more aware, do you mean magistrates? Ms Flintham: I would say magistrates and the general public as well. It is a wider issue but certainly the magistrates, too. Ms Lipscomb: I think it goes beyond just an awareness; it is an understanding that a particular offence may have a direct impact, it may have an indirect impact, and it could have a multiple impact. Q95 Chairman: And yet we have heard from the Environment Agency last week that one of the difficulties is that people regard this as a sort of victimless crime area, that in their view there is not a proper awareness of the gravity or potential gravity of the sorts of crimes we are dealing with here. You obviously take a more optimistic view? Ms Lipscomb: We did a lot of work with the Environmental Law Foundation, the environmental agency DEFRA and other interested bodies two years ago to produce the piece of work called Costing the Earth. We believe that has had a significant impact. We have heard back from prosecutors that sentences appear to be higher and that the impact on the prosecutors of good, clear reasons from the courts is actually having a snowball effect in that it has given them a very clear idea of what the courts have in mind and what sort of information the courts require. Getting the background information on which to make decisions has been the most difficult aspect of it for us. Q96 Chairman: Do you think that there is a greater awareness now on the part of people who commit these crimes that they are in fact committing criminal offences? The Environment Agency again suggested to us that one of the difficulties was that people did not think that they were being criminal when they were committing various types of these activities. Ms Lipscomb: There is more publicity now about the offences and the consequences. I think for everybody working where they are possibly going to cut corners and possibly commit offences, there is a good argument to have a wider national campaign. Ms Flintham: There is a bit of difference sometimes, is there not, from your single operator who is going fly-tipping and your criminal gangs who are importing endangered wildlife. In terms of the criminal gangs, there is a recognition now that there are vast amounts of money in this; it is being compared with things like drug crimes, for example. I think that message slowly is getting through. It may be that perhaps the smaller operators, as I say, the fly‑tippers of this world who maybe think they can still get away with it, is where the enforcement really needs to be and where they need to be brought into the courts and to be dealt with. Perhaps it is at that end where there still needs to be some change in their culture and their attitude. Ms Lipscomb: They are the most difficult people to deal with. Where you have a company and you can get accurate information as to what their turnover is, it is much easier just to set a fine. With the small operator, it is much more difficult. Any links that we could have with the Benefits Agency and with the Inland Revenue, if they could be required to produce accounts, the accounts would be forthcoming. Q97 Chairman: We will come on to that issue later, if we may. You have made a very interesting point there. In general terms, the impression one has, looking at the number of prosecutions that are coming through, is that this is a pretty small area of criminal justice. In the context of the overall number of cases that you deal with every year, environmental crimes are tiny, are they not? Do you think that the number of cases you deal with is a true reflection of the scale of the problem? Ms Lipscomb: No. I am sure that we do not see the smaller cases, the fly-tipping, the other sorts of cases that verge on antisocial behaviour, that are a nuisance and upset communities and make life unpleasant in areas. We do not see the numbers that there are. Ms Flintham: I think that is probably a problem for local authorities and this is where their resources are very limited. Q98 Chairman: The problem is a bigger one than would appear in terms of your workload? Ms Lipscomb: Yes. Q99 Chairman: Before we go on to sentencing, I would like to ask about the advice of the Sentencing Advisory Panel set up by the Court of Appeal in 2000, which suggested that the presentation of environmental cases in courts was generally poor. Would you have agreed with that at the time and do you think it has changed or got any better since? Ms Lipscomb: We would certainly have agreed with that at the time. It is something that we have directly worked on with prosecutors. Coming back to what we were saying earlier about the information given to the court, it is not necessarily the presentation of the cases as they stand but the information when you come to the point of sentencing that is crucial. Q100 Mr Challen: May I start by asking you a couple of questions about the toolkit Costing the Earth on your website, which was started 14 month ago or thereabouts? Have you managed to determine how many hits it has or what the usage or take-up of that particular toolkit has been? Ms Flintham: We do not have any hard evidence of the numbers of people using it, but we do know anecdotally that a lot of people are using it who are outside the magistracy. We know that a lot of local authorities have picked it up, that the police force has picked it up, and I know by the number of calls I have had from judges ringing me and asking me if there is a particular case that they can use or have some help with if they have not managed to download it. We know the interest is out there. We are also aware that we are still in the process of raising awareness that it is there, so there is still a job of work to be done to make sure that people are accessing it and using it. Ms Lipscomb: Last year, before the website and before the whole case was opened to anybody, I do know that 50 per cent of local authorities had originally purchased the bound edition in hard copy. Q101 Mr Challen: Have you had any feedback from the magistrates themselves so that you can measure how effective it is? It is aimed at magistrates, is it not? Ms Flintham: We know that in many courts they have a bound copy sitting in the retiring room and that in some cases magistrates are telling their legal advisers that it is there. There is still a job for us to get that information out there. We make regular references to it in our magazine, which goes to our members ten times a year. We know that some of the cases have been used in our local PR projects where magistrates go out to the community and take members of the public through sentencing exercises. We know that they have used those cases there. I suppose that is a double-edged education slot in that it is helping the magistrates and trying to educate the public as well. Q102 Mr Challen: That is mainly anecdotal evidence; it is not somebody formally monitoring that? Ms Flintham: We have not done any formal research to find out how many people are using it. Q103 Mr Challen: It must sit on the shelf with a lot of other guidance as well. Ms Lipscomb: Except that, because magistrates are not dealing with those cases very often, they are more likely to use it when required. Ms Flintham: And to look things up. Q104 Mr Challen: We have been told that the sentencing powers are broadly sufficient but that the sentences on conviction generally are not. You say in your memo that you are aware of concerns about sentences currently handed down being too low. Do you share those concerns that they are too low? Ms Lipscomb: The impression we get from the environmental magazines is that sentences have gone up significantly over the last 18 months. Magistrates are using the maximum of their powers, or near to the maximum of their powers, in a way that they were not doing before. That is the best snapshot we can get, and so the cases are not broken out. Q105 Mr Challen: Would you say that the maximums are sufficient themselves? I understand that £20,000 is the maximum fine or two years' imprisonment. Are those limits constraining in themselves? Ms Lipscomb: Providing they are either way offences, they can be committed to the Crown Court for greater sentence. Q106 Mr Challen: Do you think that magistrates are competent in sentencing offenders at higher levels of fines and imprisonment than they are usually accustomed to doing? Are magistrates perhaps unused to dealing with the sorts of corporate offenders particularly who should attract higher sentences? Ms Lipscomb: Magistrates are used to sentencing people for six months or two offences of six months with a maximum of a year. I do not think they should find any difficulty at all with that, providing the information is there and the level of seriousness of the offence can be made out. If it requires a greater sentence than six month, they still have the power to commit to the Crown Court. Q107 Mr Challen: I am wondering if corporate defendants are better represented. Clearly, if you have your average fly-tipper, they might not be represented at all; I do not know if they might have some legal advice? Ms Lipscomb: Corporate defendants are easier to deal with because you have their information and you can get better information from them on the means of the business. Ms Flintham: It is right to say that quite often their defence is perhaps of a higher standard than for your smaller people. Q108 Mr Challen: They will be able to look for loopholes, get-out clauses and all sorts of things, which your average Joe Bloggs would be unable to call upon? Ms Lipscomb: If it is strict liability, they would not be looking for loopholes; it would be a question of what sort of mitigation they put forward. There again, as far as mitigation is concerned, that has to be assessed. It is hard to see that a larger enterprise could put forward more powerful mitigation than a single operator. Ms Flintham: Perhaps I could put that in another way in that what you do need is extremely good prosecutions. Provided that your prosecutions have done their job properly, that they have brought out relevant facts and they have made a clear case of economic gain in whatever way it is, then that should be sufficient to counteract the robust defence. Q109 Mr Challen: For some companies, some of the fines that are meted out are probably pinpricks and they will just perhaps write that off as bad luck and carry on in their old ways. Do you think there is really a lot of repeat offending because of a low deterrent value of sentences? Ms Lipscomb: There appears to be, I think we have noticed in particular river offences and pollution of water, repeat offending. There is absolutely no reason why these repeat offenders should not be fined up to the maximum. Q110 Mr Challen: Does that happen? The papers have reported on some water companies many times in the same sorts of case. Are those sentences ramped up each time they reappear or are they just given the same kind of sentence as they had before? Ms Flintham: Certainly when you are sentencing, you would be looking at the previous behaviour of a company. If they are repeat offending, then that would be an aggregating factor in the sentencing. Ms Lipscomb: And there would be no mitigation available to them. Q111 Mr Challen: Should their balance sheets be taken into account when sentences are given out? Obviously, if it is meant as retribution, perhaps the kinds of fines that we are talking about at the moment really are too low. Should we have other more stringent sentencing? Ms Lipscomb: This comes back to the quality of the information. It is absolutely essential for sentencing that you have documented evidence of the profitability of the company. Q112 Chairman: But you do not have that information? Ms Lipscomb: That is variable. You can ask for it but you cannot require it. Q113 Chairman: It seems to me to be extremely material. If you take someone on average earnings and they get a £3,000 fine, that is 17 per cent of their annual income, whereas for a company that is earning, say millions of pounds a year, it would be £170,000. I have not seen many fines equating to £170,000. Ms Flintham: Those, of course, would have to be imposed by judges. We would not have powers to do that. Q114 Chairman: They would. Am I on to a sensible point here? I am asking about the relative hurt in fixing fines by courts in terms of corporates and individuals. It seems that individuals have to pay a significantly higher amount relative to their value than companies do. Ms Flintham: It is a lot more difficult to assess when it comes to companies. Ms Lipscomb: You should be able to do it on overall turnover. Ms Flintham: One of the key difficulties in terms of companies, and you are identifying big companies like big water companies, for us is with a very small company where perhaps just three or four people are involved. You are told when you are sentencing that if you fine too highly it is likely to put that company out of business and therefore you will be making two or three people redundant. That is quite a difficult one to deal with because one knows the association sometimes between lack of employment and crime. Obviously that is a big problem for us when fining small companies. Ms Lipscomb: We are legally required to take into account the means of either a company or an individual when we are setting the fine. Q115 Mr Challen: Would that also affect the magistrates' ability to ask the offender to remediate the damage done? Perhaps in a waste disposal case they would have to pay for the clean-up? Ms Lipscomb: This is where it can be quite misleading. Sometimes the fines may look relatively insignificant but the cost of compliance has actually been much higher. One would put the reparation, the cost of repair of the damage, higher than the fine. It would rate above the fine. If they were of limited means, it would be more important that they paid for the reparation than had a very high fine. This is quite often where there is a misunderstanding of the level of fining. Q116 Mr Challen: What power or discretion do magistrates have in this regard? Ms Lipscomb: They have no discretion but the costs would have been exercised through the authority that was prosecuting. Q117 Mr Challen: Could you force a company, say the directors, to go out and clean it up themselves, for example? Ms Lipscomb: That could only be if it was subject to imprisonment, and then you could give a community sentence. Ms Flintham: You could have a community penalty whereby, as part of that community penalty, somebody did unpaid service in the community. It could well be in doing that that you could require that person to undertake a specific task. Ms Lipscomb: You could direct that that is done. Q118 Mr Challen: Does that happen very often? Ms Lipscomb: No, because usually if they are going to move up into that sentencing band, it would be so serious that the person is likely to go to prison. Q119 Mr Challen: It could also happen in fairly trivial cases. If it was a discussion on fly‑tipping, you could tell them to go and clean up somebody else's fly-tipping. Ms Lipscomb: In those cases the maximum is a fine. 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; it is £5,000 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 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 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 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 certainly has become a major problem for all sorts of people in terms of local authority clean‑up time. 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. 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 to see a better standard of prosecution when they bring their cases into court. Q132 Chairman: The local authorities themselves, in a recent survey, seem to to be wholly convinced that the courts understand environmental issues. I think 20 per cent 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 four figures. That is a difficulty for them. We appreciate that it is costly for them to bring a prosecution, but 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; what the costs 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 whole area and whether this has any relationship to that 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 that 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. 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 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 per cent 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 contribute to 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 that it was not going to cause a further offence. Q140 Sue Doughty: We have some research by Environmental Resource Management, ERM, and they have suggested that only 22 per cent of magistrates are clearly aware of the environmental sentencing guidelines. How do you get that awareness higher? You have been telling us all the things you have been doing but only 22 per cent of magistrates are aware, despite all the publicity you have put into it. Ms Lipscomb: We had not been aware that they have been asking magistrates and so I cannot comment on the 22 per cent figure. I think it is important to remember that magistrates are sitting in benches of three. That has an incremental effect on spreading knowledge and experience; the resources are there and they have a legal adviser. The legal adviser should be bringing past cases and the Costing the Earth material to their attention if they have an offence before them. Q141 Sue Doughty: Last week when we were asking about the same issues, one of the concerns was that magistrates do not often see these crimes, that they are not getting a lot of exposure to them. Would that be one of the things that you think might contribute to the 22 per cent figure? We are beginning to see that there is information out there for them and they could have the training. It might be several weeks or even months before they actually came across a case where they use it. All sorts of other things intervene, for which there are also guidelines, which they may do much more often. Ms Lipscomb: Yes, but because they are not coming across them so often, they are more likely to make use of the material that is there. Another thing that we do is produce a magazine that goes out to all our 28,000 members every month. There is a guideline case in that each month. Many of the guidelines cases deal with a sentencing comment from a district judge. Many of those cases are on the environment. We are getting constant reminders. Q142 Chairman: If the system is working so well, why is there such concern about the level of sentences being handed down? The level of sentences was set in 1990. It has not been adjusted for inflation. In real terms, the sorts of penalties being handed out have diminished very sharply. The average fine is £2,000 to £3,000. That is the key area of concern that we had explained to us. If the whole system is working as well as you are seeking to imply, then that concern would not be there, would it? Ms Flintham: Perhaps we need to see a further breakdown so that we know what large companies are being fined and what the fines are for the small-time operator. The small-time operator is likely to be somebody who is probably unemployed, probably claiming benefit. The level of fine you impose on somebody like that is likely to be £5 a fortnight. You can see that the average is dragged down very quickly. Ms Lipscomb: Looking at Environmental News, which does a back page on cases that have been sentenced recently, the impression you get is that over the last 18 months sentences have been going up, and they are putting a very positive outlook on it. Q143 Sue Doughty: There other types of crime where you have sentencing guidelines. Are these guidelines more effective in terms of what you actually see as the sentencing outcome? Do you feel because that is a more established area of casework that you are getting, you have more consistency there? Ms Lipscomb: Not necessarily, and what we seek all the time is a consistency of approach to sentencing so that you are training magistrates through a structured, decision-making approach to sentencing. In sentencing, you are always going to have variation of actual outcome because you are taking into account the level of seriousness, risk factors and mitigating circumstances. You have got to take account of somebody's means and so you are not going to be sentencing someone to the same sentence for the same offence necessarily. But if you go through the same process and your approach is the same, you should have a satisfactory average across the piece. Q144 Sue Doughty: Thank you for that. I would like to turn on to where we could improve the system now. One of the queries I have is over this whole point about expertise. The Law Society suggested that individual magistrates might only hear an environmental case once every seven years. The Environment Agency has concerns about skill levels. They were wondering, in their evidence to us, whether it might be a good thing to develop expert magistrates who would work on a regional basis to hear this sort of perhaps environmental and health and safety prosecution and so on. Do you think that specialist magistrates are effective and would this be a good idea in this field? Ms Lipscomb: I do not think it would necessarily make a worthwhile difference because there is also the link between magistrates and being relatively local. That is a very strong link in that people who are dealing with cased in their own area are more aware of dangers, difficulties and prevalence than they might be doing it on a specialist basis. Q145 Sue Doughty: If we have a problem about awareness and also a problem with the public about environmental crime, the impact of that and their responsibility for it, what do you think should be happening? Are you aware of any steps being taken to raise awareness in general about the fact that environmental crime is a crime? Ms Lipscomb: I do not think enough is happening. It comes back to detection and prosecution to ensure that areas are not run down and used as dumps and that it is acceptable for this sort of behaviour. That is one of the great deterrents. If you clean up an area and you keep it clean, then you reduce the likelihood of offences considerably. Q146 Sue Doughty: Is there anything that the Magistrates' Association can do to promote this idea? Ms Lipscomb: As Ann Flintham mentioned earlier, we do use environmental crime quite a lot when we do these presentations in communities because it is something that they find interesting. I do not think they have shut their minds to what is going on around them. It is something that can explain the work of the courts very satisfactorily to local people. Maybe that is something that we should continue to do and do more of. Ms Flintham: Another area you might like to know about is that we run a mock trial competition with the Citizenship Foundation. We are working with the Environment Agency on a case, which I think has been finalised now, that we are going to use in that mock trial competition. There are lots of small things that are happening, but perhaps not something which is really big, to bring this to the public's awareness. Q147 Sue Doughty: Do you think you get adequate training on environmental crime? We heard earlier evidence that there is training but the problem is in delay. Do you think in the first place training is adequate? Ms Lipscomb: One can always say there should be more training. I think it is an area where there is always going to be some difficulty over the next two or three years with all the changes going on to the criminal justice system and the new legislation of the Criminal Justice Act. These are the same principles that are to be followed and so any training that magistrates get ought to have an impact on how they handle environmental crime. Q148 Sue Doughty: Do you think that there is any risk? You mentioned all the other things that are happening, the changes to the criminal justice system. Will magistrates be able to find the time to get this sort of training, given all the other calls on their time? Ms Flintham: When you are appointed to be a magistrate, you expect to undertake a degree of training. There is an emphasis on magistrates taking some responsibility for learning themselves. If you like, by reading our magazine, they will be picking things up all the time. I also think that when magistrates do sit on these sorts of cases, they find them interesting; they are different. They will be looking at the material that is available to help them. Ms Lipscomb: But any public awareness campaign will also have a knock-on effect for magistrates. Q149 Sue Doughty: We have looked at training, at the skills we have and at publicity. Are there any other issues about getting effective environmental justice? For example, is there any funding there? Do you get the resources you need so that you feel that, when somebody comes before you for trial and sentencing, the resources are there that you need to do that job properly? Ms Flintham: That is a very difficult question because I suppose everybody would say there are not enough resources. From a magistrate's point of view, there are but, as I have already mentioned, that is not so in some of the prosecuting authorities. The Environment Agency is a very big one but there are other much smaller prosecuting agencies that deal with environmental crime and they may not have the resources. I am thinking of the RSPB, for example. There are some small charities which specifically look, for example, at the care of horses. That would come under environmental crime. They have very little money to bring prosecutions. Perhaps that is an area where resources are limited but perhaps those sorts of charities could enlist the help of the Environment Agency or the bigger authorities. There could be a lot more pooling of good practice. Just as magistrates hear these cases rarely, so prosecutors actually do not do it that often either. I think there can be something picked up from good practice amongst prosecutors. In fact, many prosecutors find Costing the Earth very helpful because there was nothing in existence for them before. We do know that for them it is a difficulty as well. Ms Lipscomb: On the magistrates' side, it is important that magistrates dealing with environmental crime recognise that they have to develop a more inquisitorial approach. To give you an example, there was a case to do with bats. There was a barn, or two barns I think, and the bats had to stay in the barns but the barns were being redeveloped as farmhouses. As it happened, the builders did not leave the bats in place and the prosecution came to court. There was no information. They were presented as barns. It was sentenced on that basis. The upset and concern expressed afterwards was that ultimately the buildings were sold for something like £750,000 each. None of that information was before the court. The fact that they were going to be built and changed into houses was not before the court. Those are the sorts of issues that obviously have a huge impact on sentencing. Q150 Chairman: It is interesting to have an example to think about. Who was bringing the prosecution in that case? Was that the local authority? Ms Flintham: It was the RSPB. It was the time of year when the bats were supposed to be left in place because that was the specific time of year they should be left alone. Quite clearly for the developer it was much more economic for him to carry on with his development and to be able to finish the properties and sell them sooner. Q151 Chairman: Why was not that critical information made available? Ms Flintham: That sort of economic gain, whether it be actual profitability or how much money people have saved by either not complying or perhaps by not putting training in place, quite often is not before the court. Q152 Chairman: What power do you have to request information like that? Ms Lipscomb: Only the power of asking the questions and keeping on asking questions until you are satisfied with the answers you receive. But of course, if the case comes to court before the properties are actually sold, it could be that the owner or the developer would contest the value of them. The court would have a pretty good idea if it had just got the information in the first place. Q153 Chairman: Do you feel you have enough freedom to ask probing questions? Ms Flintham: Sometimes that is difficult for us because we have to be very carefully in asking our questions that we are not actually bringing new evidence into the case. Sometimes you are sitting there with your hands tied. Q154 Chairman: You know that there should be new evidence brought to the case but you are unable to extract it? Ms Flintham: Yes, and we are unable to extract it because it would be new evidence. Ms Lipscomb: We only get further information at the sentencing point, once you get to that point, and then it would be quite difficult to get it there. You need the full picture right at the beginning. Q155 Sue Doughty: How to you get this information down then to these other groups? The Environment Agency knows what they are doing. When we are talking about smaller organisations, how do you provide information generally to someone who is bringing a prosecution on a wildlife crime, for example, and say, "This is the sort of information which magistrates will take into consideration if you are able to provide it"? Ms Lipscomb: The case must be presented in context. Ms Flintham: There are smaller groups which join together. For example, there is PAWS, Partnership Against Wildlife Crime, which is predominantly run by DEFRA in conjunction with a lot of smaller NGOs. We meet and liaise with them quite frequently. Maybe there are routes through meetings with PAWS where we could try to get across the importance of good prosecutions. ENCAMS is something which is being approached by DEFRA at the moment in terms of running seminars. They may have been asked to take a slot at each of those seminars, which are being run regionally, to talk again about Costing the Earth and about our needs for a prosecution in court and what is lacking from our point of view. That is something else which is happening in three to four months' time. Q156 Sue Doughty: Just moving on one bit further, in some of the evidence we have had there has been a suggestion: would it not be better to have environmental courts? How would you feel about that? Ms Lipscomb: The very nature of the crime and the way that it affects somebody's environment strengthens the case for having it dealt with in that area. Providing you have good information and, if it is a large company, the fines are high and you are looking towards the maximum, I think it is going to continue to arouse people's interest and respect for their own environment if these are dealt with in their own areas. Q157 Chairman: Is that a "no"? Ms Lipscomb: No, they should be dealt with as they are at the moment in the local courts. Q158 Sue Doughty: Can I move on to one or two more options about sentencing? I know we are going round this one again and again but I want to make sure that we have covered everything while we have you here. We do appreciate your patience with us. Antisocial behaviour orders: do you think they are effective and helpful with nuisance and antisocial behaviour? Ms Lipscomb: Providing you can be sure that the right sort of work can go on with local authorities in housing and everybody has been involved, antisocial behaviour orders may be the only option when it comes to noise and difficult neighbourhood disputes. As regards other environmental crime, I do not think they are likely to have much impact. Ms Flintham: I suppose they can only be as effective as the enforcement of them. If we have a particular problem with graffiti, for example, and there is an antisocial behaviour order where you forbid these young people to carry paint or whatever it is, then clearly it would only be successful if they are not constantly checked but, if they are found to have those pencils or paints on them, brought back to the court and dealt with effectively. That is quite difficult, is it not, if you are thinking about enforcing somebody all the time from actually going to a certain area or carrying something or behaving in an appropriate way. It is the enforcement which brings about difficulties. Q159 Sue Doughty: Do you see repeat offenders where you have issued those, in general terms and not necessarily with environmental crime? Ms Lipscomb: There are breaches of aspects going ahead. It is a court order. It is dealt with pretty firmly. Ms Flintham: It is an alternative. Q160 Sue Doughty: If you are able to increase the options of sentencing - put in tougher sentencing, tougher fines, use a harder range of remedies - would you welcome that? Ms Lipscomb: I think we would always welcome sentences that involve reparation: community sentences where people are actually cleaning up things that they have messed up. Long term, that has a good effect. Rather than sentences, what we would go back to is this business of higher quality information and the ability to check an account or go to the Benefits Agency to get addresses and information, and for people actually to have to produce to the court documentary evidence about what they have already done in the past in complying with the regulatory rules. Ms Flintham: I think it is a knowledge of anything that they might have done in terms, for example, of training for their staff, whether it is a half-hour, quick training session or a proper half‑day course, that type of thing. Again, anyone can claim that they have done training, but what was the nature and what was the quality of that training? Did it make a sufficient difference perhaps to help prevent something? Q161 Sue Doughty: That is really looking at the issues behind what you have on the table and adding up what the behaviour is now? Ms Lipscomb: Yes. Q162 Mr Challen: Looking back at corporate responsibility, is the law sufficient at the moment to allow directors to be prosecuted for the actions of their company, or is it simply the company itself that faces the penalty? Put it in the context of the corporate manslaughter debate, which clearly is quite an issue. Ms Lipscomb: That is one that is really outside our remit. It would go to the Crown Court. I do not think we would hold a view on that. Q163 Mr Challen: If it goes to the Crown Court, presumably it is a more serious offence, but even for cases lower down, the less serious offences, do you think that perhaps people should be held accountable? Ms Flintham: I was thinking about other areas of law, for example noise. There are, for example, certain streets where lorries are not allowed to go before 6 o'clock, or whatever. In those cases, I think both the owner and the driver are charged and both have a responsibility. In terms of the owner again, you would be looking to see what he had provided the driver. Did he provide the driver with a proper map of where to go? Did he provide the driver with instructions of where exactly he was not to go? What training was the driver given? That is a classic example of where you would look at the responsibility of the owner as well as the driver who had actually committed the offence of going into an area which he was prohibited from entering. Q164 Mr Challen: If a director of a company allowed a junior member of that company to go and dump some stuff somewhere - and there have been cases of this happening, particularly with clinical waste - can the director or the manager be prosecuted or is it the person who actually is caught handling it, as it were, or is it simply the company as a corporate body that is held responsible? Ms Lipscomb: In these cases I think it is the corporate body but obviously a director would have to answer for that. Coming back to the others, there would be an advantage in that. Overloading is a classic and it can be very dangerous offence. Most frequently it is the driver of the day and the owner of the company who is prosecuted, and the owner will take a much greater fine than the driver. Q165 Mr Challen: Just very finally, going back to Costing the Earth, why does it take so long to get this advice out? Why did we have to wait for the 21st century? Was there anything at all back in the 1980s or 1990s of guidance here for environmental offences? Ms Flintham: You will be surprised perhaps to know that guidance for the average criminal offences has not been with us for that long, and Costing the Earth came out of discussions between the Environment Agency and the Health and Safety Executive and ourselves, and it kicked off probably about four years ago when we first started talking to them. We did produce some very general guidelines but then we felt that we wanted to get environmental crime higher up the agenda, so two years ago we decided to dedicate our AGM to a special session in the afternoon; we dedicated our magazine to it; and we started thinking about bringing about some sort of information and making it available for magistrates, because it became clear that there would not be availability for specific training on this as it covers too wide an area and there are too many pressing issues and priorities. So we looked at ways of trying to get information out to magistrates and of raising awareness in a background of environmental crime coming into a public arena anyway, and it did take quite a considerable time to put that together. It was launched over a year ago and we have updated and added to it so it is a living document; and we intend to do that again next November, so because it is living we can continually update it with new types of crime, new times of offences and case law that comes through. It is also available on our website, so I think technology has helped us to get it out and about. Q166 Chairman: Thank you very much. Your oral evidence has been a great deal more helpful than your written evidence, if I may say so. Is there anything else you would like to add based on the conversation that we have had today? Ms Lipscomb: No. I think it comes back to the same message: that it is the question of getting the information across to the court that lies at the heart of it. Chairman: Thank you both very much indeed. |