The Prosecution of Environmental Crime in the United Kingdom

Angus Innes

Prosecutions Team Leader

South East Region, E.A.

UNITED KINGDOM 4 PARLIAMENTS – 3 AGENCIES

1. Environment Agency – covers England & Wales.

2. Scottish Environment Protection Agency. 3. Northern Ireland Environment Agency.

Features of the local legal system of note

g  Statutory law includes the obligatory implementation of EU Directives.

g  There are Lay benches in Magistrates Courts, although District Judges (equivalent of Stipendiary Magistrates) deal with more complex matters. Max punishment 6 months imprisonment.

g  Juries for criminal cases in the Crown Court. g  Many matters relating to the issue of permits and the imposition of

conditions go on appeal to the Planning Inspectorate, which is staffed by a variety of backgrounds.

g  The recently created system of Civil/Administrative Penalties has led to the creation of a specialised grouping within the revamped Tribunals system in the UK to which appeals will go.

Who does what in the UK?

The EA (or the Scottish and Nth Ireland equivalent):

•  Looks after almost anything to do with freshwater (rivers, groundwater and reservoirs) its’ quality and use, incl abstraction of water, discharge into water, pollution, fishing and fish movement, navigation on rivers.

•  Flood defence – river and sea.

•  Oversight of waste, including the permitting of all waste handling facilities and registration of all waste carriers. Trans Frontier Shipping of Waste.

•  Permitting and regulation of industrial facilities that could cause significant pollution.

•  Permits conditioning the use of radioactive sources.

Who does what in the UK? - continued

OTHER IMPORTANT PLAYERS: g  Local Authorities have coextensive powers with the EA over some waste enforcement

matters, but not for permitting facilities. They have powers in relation to noise and air quality. They also have planning powers which are of obvious relevance to many environmental issues. Another important co-regulator is the Health & Safety Executive.

g  Our parent Dept, DEFRA, has a number of Directorates which in turn preside over units or other agencies which enforce laws protecting the natural environment including wildlife and such matters as marine pollution, sea fishing, forestry and the regulation of farm subsidy payments for the encouragement of wildlife.

g  Each Police force in the country has some officers dedicated to the enforcement of DEFRA supervised laws for wildlife species and habitat protection. There cases are prosecuted by the Crown Prosecution Service (CPS).

g  HM Customs have special units to deal with CITES offences.

g  Powerful NGOs such as the RSPCA, the Royal Soc for the Protection of Birds and Wildlife Trusts act as informants for the enforcement of laws relating to their interest.

E. A. (Eng & W) – Key Features g  1996 Amalgamation of National Rivers Authority, HM

Inspectorate of Pollution and the Waste Management Authorities.

g  Staff – 10,000 plus (significant number in flood defence)

g  7 Regions covering whole of England & Wales.

g  Every Region has, amongst other staff, a number of Environment Management Teams, each allocated to a specified area – major duty is attending pollution incidents and inspection of regulated sites.

g  Each Region has a smaller number of Environmental Crime Teams – dealing with more complex offences.

E.A. – Legal Organisation

g  There is a National Legal Service with Advisory and specialist lawyers attached to Head Office and a legal Dept and specialist Prosecutors within in each Region. (The South East Region, which embraces London, has a third of the population of England & Wales).

g  Biggest pure environmental prosecuting group in country.

g  Annually over 800 + prosecutions a year in Magistrates and Crown Courts. (About 500 for waste offences and 200 water related).

g  Over 4200 fishing licence offences dealt with annually (In the UK all persons who fish have to obtain a licence).

E.A. Published Policies & Guidance

g  We have a published Enforcement and Prosecution Policy and Guidance. Prosecution of most offences relates to seriousness of environmental impact. The Policy includes the A-G’s Code for Crown Prosecutors.

g  The above Guidance in turn refers to other EA published guidance that deals with the categorisation of the seriousness of offences on a numeric scale of 1 to 4, 1 being the most severe.

Important Criminal Legislation of General Application to all Prosecutions

g  Criminal Procedure & Investigations Act 1996.

g  Police & Criminal Evidence Act 1984 - which introduces the concept of fairness, and sets out Codes for such matters as detention & questioning, identification, and tape recording of interviews.

g  Human Rights Act 1998 - Fair trial, Torture, Privacy.

g  The Regulation of Investigatory Powers Act 2000 (Surveillance).

g  Proceeds of Crime Act 2002.

Enforcement Responses

g  Possible issue of Notices requiring cessation of nominated activity or the undertaking of works to bring site into compliance with permit or the law. Various appeal routes, OR

g  One of the three Formal Responses: 1. Warning Letter (lowest level response); 2. Caution (involves written admission of Guilt), 3. Prosecution (highest level response), OR

g  One of the new Civil (Admin) Sanctions.

Aims of the Individual Prosecution g  Focus on OUTCOMES, not just proof of Guilt. g  Environmental Consequences (including

undermining of regulated industries). g  Financial Gain and its’ elimination. g  Remediation g  Compensation g  Confiscation of the Proceeds of Crime g  Post Conviction Plans for permit holders or

persons with registration.

EXAMPLES OF DIFFERENT TYPES OF ENVIRONMENT AGENCY PROSECUTIONS

EA/H&S – Co-regulated Oil Storage

Buncefield Explosion

g  Europe’s Biggest post-World War II explosion. 2.4 on Richter Scale. 43 injured.

g  Effectively a massive fuel farm – much being aviation fuel.

g  Five defendants, with Total being major dft. g  Total Oil received £3 million in fines, of a total of

fines and costs of £9.5 million. g  Joint prosecution by EA and Health & Safety

Exec. Most offences against H&S Act for breaches of Control of Major Accident Hazard Regulations 1999. Some water pollution offences (fire retarding foam).

EA examples – fish kill / pollution

The River Wandle g  A prosecution of Thames Water Utilitities

Limited (now owned by Macquarie Bank of Australia ) for the destruction of ten years of urban river restoration by chemical discharge from a sewage treatment works.

g  Led to major judgement by the Court of Appeal on the discount significance in assessing fines of a voluntary promise of payment of over £1/2 to long term remediation.

OUTPOURING SEWAGE The Source of a eight

year flow of litigation from a suburb of London to Luxembourg and back.

EA v TWUL – Elmers End, SW London

g  2003 Sewage outflow. Pros. Commenced. g  2004 Prelim legal point taken. JR’d. g  2005 High Court ruling & referred to ECJ. g  2007 European Ct of Justice rules. g  2008 High Court rules, remitted for trial. g  2010 Hearing Bromley Magistrates Court. g  2011 Findings, sentence. JR/Case Stated to

High Court (Upper Tier Tribunal) & Appeal against sentence to Crown Court.

Waste Crime

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