Investigating Shipping Pollution Violations

Pacific Module 14: Post investigation and collation of evidence

Aim

• To describe the tasks required to prepare an evidence brief or case report

Overview

• Compilation of relevant facts and evidence• Forms basis for prosecuting alleged offence• Two-fold purpose:

– Acquaint Crown/Prosecutor with details of alleged offence

– Disclose evidence to defendant’s legal team

• Utilise relevant domestic procedures or guidelines for preparation of Evidence Brief/Case Report

Evidence Brief

• Introduction– Overview Statement– Scope of the Investigation

• Body – Analysis of Evidence

• Conclusion– Options– Considerations– Recommendations– Appendices

Introduction

• Overview Statement– Summary form

• Issue or subject of the investigation• Main outcomes of the investigation• People/ companies/ vessels involved• Main recommendations• Legislation and offences involved

• Scope of Investigation– Summary Statement

• Investigating team and investigative authority• Investigative timeframe and time on task• Sources of and limits to information• Main informants to the investigation

Body

• Analysis of Evidence– Elements of a breach of the legislation– Chronological account of the investigation– References to all evidence (in Appendix)– Reference to specific procedures, standards,

codes, policies and legislation– Sufficiency of evidence (e.g. prime facie case)– Summary listing of outcomes

Conclusion (1)

• Options– Options and arguments for further action– Investigator’s preferred option

• Considerations– Circumstances with respect to:

• Special claims and mitigation• History• Impacts

• Recommendations– Actions, responsibility and timing– Summary listing of recommendations

Conclusion (2)

• Appendices– Copy of each Appendices referenced

• Statement of Facts• Evidence (witness statements, interview reports)• Witness List• Vessel Documentation• List of Exhibits• Other Relevant Information

Information on Accused

• Where the accused is an individual– Name– Address– Date of birth– Family status– Nationality– Employment history– Level of cooperation – Past compliance record– Other relevant information

Note that where the individual is a foreign national some information may not be available or necessary.

Information on Accused

• Where the accused is a corporation– Name and address– Location of registry– Legal registered name– IMO Company number– Status (e.g. in good standing?)– Stated purpose of company– Past compliance record– Names of directors and officers– Financial viability– Other relevant information

• Shipowner, Charterer, Ship Manager etc

Information on the Vessel

• Vessel information– Name– Type– Year built/length/breadth– Flag State– IMO number– Gross tonnage– Name of owner(s)– Name of managers/ charterers /ISM manager– Past compliance record – Port State Control History– Other relevant information (such as general operation of

the vessel and typical voyages undertaken)

Summary

• Purpose is to establish ‘prima facie’ case• Detailed and factual chronology of events

Purpose of Legislation

• Purpose is to fully inform Crown/Prosecutor about the detailed nature of relevant legislation

• For example:– ‘Regulatory Impact Assessment Statements’

contain information on purpose of legislation

Analysis of Offence

• Purpose is to present facts in issue and evidence to validate elements of offence (sometimes called Evidence Matrix)

• Information required:– Detailed breakdown of alleged offence– Details of evidence required to prove element(s)– Details of possible legal defence

Relevant Jurisprudence

• Purpose is to provide recent and applicable court decisions to serve as Crown/Prosecutor guideline

• Information required:– Past court decisions in similar cases– Degree of environmental impact– Accompanying Regulatory Impact Assessment

Statement (if applicable)

Draft Charge

• Purpose is to prepare for Crown/Prosecutor approval a draft copy of charge(s) that potentially could be served upon the offender

List of Witnesses

• Purpose is to help Crown/Prosecutor estimate length of time required for trial

• Information required:– List of all witnesses who may need to testify– Reference to page number in witness package

Witness Package

• Purpose is to provide all pertinent information including involvement, and what evidence the witness will present

• Information required– Person’s name and contact details– Every written statement made by the witness– Document outlining what the witness observed,

perceived, said, and/or did

• For expert witnesses– Reports– Curriculum vitae– Anticipated evidence

List of Exhibits

• An exhibit register may be sufficient• Information required for each item

– Details of how the item came into investigators possession

– If applicable, who seized the item and under the auspices of what authority

– If applicable, details regarding chain of custody

• Include any scientific or forensic reports obtained in the course of the investigation

Statements by Accused

• Purpose is to alert Crown/Prosecutor to the presence of any statements made by the accused

• Possible sources of statements– Officer’s notebook– Witness statements– Interview reports

Sentencing Information

• Purpose is to provide Crown/Prosecutor with a basis for sentencing or penalty phase of the trial

• Information may include:– Summary of environmental impact or damage – Associated costs to mitigate such damages– Details of available sanctions (e.g. fines, orders)– Details of previous convictions (if applicable)

Language Considerations

• Purpose is to alert the court that an accused/ witness may not speak an official language

• For example:– Section 14 of the Canadian Charter of Rights and

Freedoms guarantees individuals the right to have an interpreter (if required)

Attachments/ Enclosures

• Purpose is to provide any supporting information not to be used as evidence

• Such information could include– Aerial photographs– Maps– Charts– Graphs

Crown/Prosecutor Education

• Most Crown/Prosecutor offices are generalists and have no knowledge of shipping terminology

• Educate them by preparing information to explain shipping terminology in lay terms– Examples:

• Bow, stern, bridge, aft, port, starboard • Different types of vessels (describe the vessel type

involved in the pollution)• Waste oil generation and disposal

Questions?