Critically assess the effectiveness of the criminal law as a means of protecting the environment from pollution.
Critically assess the effectiveness of the criminal law as a means of protecting the environment from pollution.
The main function of the criminal law, as a means of protecting the environment, is to reach impartial decisions based on the merits of each case. Environmental law is primarily concerned with human activity and the principal method which is used to regulate these activities1 is the Command and Control regulatory regime. In addition, each regulatory regime is supported, to a great extent, by criminal law offences. These offences are mainly summary, indictable and "both way" offences and the most serious tend to be related to pollution. Furthermore, they are predominantly offences of Strict Liability.2 The maximum penalty in the Crown Court is 5 years imprisonment and unlimited fines, and in the Magistrates' Court it is 6 months imprisonment and a £20,000 fine. These offences are, on the whole, inchoate offences and there is no need to prove damage to, or even with, the environment.
The criminal law has been used either to grant direct criminal punishment for environmental harm, or in a supplementary role within a regulatory system. However, it seems to be more effective in its supplementary role. This is because the whole objective of criminal law is to punish clearly identified wrongs, but in reference to a lot of environmental matters, it is sometimes impossible to identify the wrong without knowledge of other relevant factors. For instance, it is obviously very appealing to have industry and many other activities which may cause pollution. Nevertheless, the dilemma faced is not a straightforward one as to whether to have them, but a more complicated one of how much pollution is acceptable.3 Consequently, it will require an assessment of all the various factors involved against what is regarded as reasonable, and a discretionary process like this is perfectly suited for the regulatory system. The criminal law is quite inappropriate for such an assessment, therefore it is predominantly used to handle clear acts of environmental vandalism, or to support the regulatory system after it has decided what is acceptable and what is unacceptable.
In 1991, a system of Integrated Pollution Control (IPC)4 was introduced. This was expected to lead to a number of significant legal challenges to decisions made by the regulator. In reality, however, though there have been quite a lot of IPC prosecutions, there have been very few significant court cases 'at a superior court level on appeal and authorisation issues'.5 In common with other Command and Control license based regulatory authorities, the IPPC6 is underpinned by a quite a number of criminal offences.7 However, these offences are not expected to be used frequently given the huge choice of ...
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In 1991, a system of Integrated Pollution Control (IPC)4 was introduced. This was expected to lead to a number of significant legal challenges to decisions made by the regulator. In reality, however, though there have been quite a lot of IPC prosecutions, there have been very few significant court cases 'at a superior court level on appeal and authorisation issues'.5 In common with other Command and Control license based regulatory authorities, the IPPC6 is underpinned by a quite a number of criminal offences.7 However, these offences are not expected to be used frequently given the huge choice of administrative enforcement powers available to regulators. It is a criminal offence to: operate an IPPC installation without a permit; breach permit conditions; fail to give notice of a permit transfer; fail to comply with an EN8 or SN;9 intentionally make false entries in official records.
For many years, there has been severe criticism of the minimal penalties imposed on defendants in criminal cases arising out of breaches in environmental law. Only recently, there have been some cases where major financial penalties were imposed. This is illustrated in R v F Howe & Son (Engineers) Ltd.10 In this case, the defendant (Howe) appealed against a £42,000 fine imposed upon his company by the Crown Court for breaches of s 2 (1) of the Health and Safety at Work Act 1974 and regulation 4 (2) of the Electricity at Work Regulations 1989, which resulted in the death of a workman. The court of Appeal recognised that the level of fines imposed in health and safety cases was generally too low and for this reason it went on to create new sentencing guidelines. However, it is still perceived that the courts, particularly the Magistrates' courts are too lenient.
There are a lot of examples of offences which occur as a result of environmental harm. Under Section 87 of the Environmental Protection Act 1990, it is an offence to drop or deposit litter in a public or specified place. Under the Water Resources Act 199111, it is an offence to cause or knowingly permit any poisonous, noxious or polluting matter to enter controlled waters. However, it is not always necessary to show actual harm to the environment.12 The defendant's state of mind is not one of the elements of the offence which the prosecution must establish. In fact, in a number of cases an activity maybe prohibited because harm can be assumed to follow or because there is a high risk of harm.13 In contrast, in cases where the defendant 'knowingly permits' an offence, the prosecution needs to prove that the defendant knew that a 'pollution incident' took place, but he took no action to bring the incident to an end.
However, even in cases where it is not necessary to show 'actual' harm, enforcement is often left to a public body. One reason for this is its practicality, given the difficulty in some cases of identifying and proving environmental harm. Another reason is that the right to prosecution in English law has occasionally been restricted. Although this is becoming less common, a good example of this restriction is in relation to water pollution. Under the Rivers (Prevention of Pollution) Acts14, which created a system of consents for discharges to water and a general pollution offence in similar terms to the Water Resources Act 1991 (s.85). A prosecution under the River Acts could only be brought by a water authority, or with the consent of the Attorney-General. However, this restriction was removed by the Control of Pollution Act 1974 and now there is a right of private prosecution for all basic water pollution offences.
The most common use of the criminal law is in a subsidiary role to the regulators. Numerous criminal offences consist purely of ignoring the dictates of the regulatory body, and no direct act of pollution has to be committed. The Water Resources Act 199115 states that it is a criminal offence to discharge trade or sewage waste without, or in breach of, a consent from the Environment Agency. With reference to town and country planning, the offence does not consist of breaching planning control but of ignoring an enforcement notice. This clearly shows that the criminal offence is truly subsidiary to the regulatory procedure, because only the local planning authority can issue an enforcement notice. However, this takes the possibility of enforcement away from the public. The range of these offences has been widened with the unification of enforcement powers inside the Environment Agency.
All of these factors have a direct effect on decriminalising the law. The offence does not seem to be linked to the environmental harm, but to an administrative system. The enforcement of these laws is usually undertaken by an administrative body and normally for an administrative requirement. This clearly implies that these offences are actually related to the administrative system rather than the criminal law. It seems to be more concerned with prevention rather than prosecution.16 It is also evident that the regulators have much more power than the criminal law, for example, they have powers of: entry; seizure and confiscation; coercion (cooperation and monitoring); requiring work to be done; and Interrogation. In addition the extremely low sentences, that are usually imposed, also show a reluctance to prosecute. These low sentences also illustrate the limited level of moral exposure that has traditionally been connected to environmental offence. It also shows the deprived status of many who are prosecuted and the escape from prosecution by numerous major polluters.
On the whole, there is no doubt that things are changing due to the altered perception of the general public. One development in the future of environmental law maybe the making of a clear distinction between 'administrative' offences. There should also be an obvious distinction between the regulatory process and 'true' environmental crimes, with greater personal penalties available for true crimes. Therefore the use of criminal law as a means of protecting the environment clearly has a lot of room for modification and improvements.
BIBLIOGRAPHY
TEXTBOOKS
ENVIRONMENTAL LAW, 4TH EDITION, D. HUGHES, T. JEWELL, J. LOWTHER, N. PARPWORTH & P. D. PREZ, BUTTERWORTHS, (2002)
PRINCIPLES OF ENVIRONMENTAL LAW, 3RD EDITION, S. WOLF, A. WHITE & N. STANLEY, CAVENDISH PUBLISHING, (2002)
BLACKSTONE'S STATUTES ONENVIRONMENTAL LAW. DUXBURY, R. & MORTON, S, 4TH EDITION, BLACKSTONE PRESS. (2002)
ENVIRONMENTAL LAW, 5TH EDITION, S. BELL AND D. McGILLIVRAY, BLACKSTONE PRESS, (2001)
ENVIRONMENTAL LAW AND REGULATION, McELDOWNEY, J.F. & McELDOWNEY, S, Blackstone Press. (2001)
REPORTS/JOURNALS
ENVIRONMENTAL LAW REVIEW
ECOLOGY LAW QUARTERLY
ENVIRONMENTAL LAW
JOURNAL OF ENVIRONMENTAL LAW
OGUS & ABBOT (2002) 14 (3) JEL 283
ENDS REPORT
WEBSITES
WWW.WESTLAW.CO.UK
WWW.BUTTERWORTHS.CO.UK
WWW.ENDS.CO.UK
WWW.LEGISLATION.HMSO.GOV.UK
WWW.RCEP.ORG.UK
WWW.ENVIRONMENT-AGENCY.GOV.UK
Activities such as the discharge of polluting emissions and the use of resources (such as land) for building purposes - Principles of Environmental Law, S. Wolf, A. White & N. Stanley, 3rd edition, Cavendish Publishing, 2002, p.51
2 For example, the majority of offences under s.85 of the Water resources Act 1991.
3 Pollution has been described as an excess of something over what is desirable - Environmental Law, 5th edition, S. Bell & D. McGillivray, Blackstone Press, 2001
4 Relatively soon afterwards, in 1996 the Integrated Prevention and Control Directive (IPPC) (96/61/EC) came into force.
5 Environmental Law, 4th edition, Hughes et al, Butterworths, 2002
6 See footnote 4
7 PPC reg. 32
8 Enforcement Notice
9 Suspension Notice
0 (1999) 2 Cr App R (S) 37
1 s.85
2 As illustrated in R v Dovermoss Ltd (1995) Env LR 258
3 For example, under the Clean Air Act 1993, it is an offence to emit dark smoke from premises.
4 1951 and 1961
5 See footnote 11
6 Ogus & Abbot (2002) 14 (3) JEL 283
