Excuses, excuses: The ritual trivialisation of environmental prosecutions

Journal of Environmental Law

Volumn 12, Issue 1, 2000, Pages 65-76

  De Prez, Paula ^a  

^a UNIVERSITY OF WOLVERHAMPTON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CRIME; ENVIRONMENTAL LEGISLATION; LIABILITY;

UNITED KINGDOM;

EID: 0034578576     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/12.1.65     Document Type: Article

References (79)

1. Progressive stigmatisation is a precondition to effective enforcement of regulatory crimes, see I. Paulus, 'The Search for Pure Food' in M. Robertson (ed), Law In Society Series (1974) at 135.
2. M. Feeley, The Process is the Punishment (Russell Sage Foundation, 1979). The author states that the lower courts respond to their environment (at 20). Surely social attitudes also respond to court rulings in that increased judicial condemnation promotes a view that these offences are to be treated seriously, particularly in the minds of the offending population.
3. Most of these cases were from the Agency's North West region, that stretches from Carlisle to South Manchester, although a few were from the Midlands region. The environment of the North West region features the Mersey Basin (once labelled the most polluted major river catchment in the UK), poor s wage and sewerage facilities, a quarter of Britain's chemical plants, intensive agriculture in parts of Lancashire and Cumbria and several nuclear licensed sites. The North West region can therefore be expected to offer a reasonable cross-section of typical case profiles. Details of the individual cases may be obtained by contacting the author.
4. H. Croall, 'Mistakes, Accidents and Someone Else's Fault', Journal of Law & Society (1988) p 293.
5. In only one of the 25 cases did the defendant not have legal representation, and even here the manager representing her company's interests had legal training. This compares with Croall's study where 42% of the defendants had no legal representation. All of these were small businesses (ibid at 1297).
6. Croall also felt that the Magistrates' silence in the majority of prosecutions meant that effectiveness could not be properly assessed, ibid at 309.
7. For instance, s 5 states: 'A person commits an offence punishable under this section if he causes or knowingly permits to enter into a stream any poisonous, noxious or polluting matter.'
8. For example, the deposit of 'controlled waste', the discharge of 'poisonous, noxious or polluting substances', subsections 33(1) EPA 1990 and 85(1) respectively.
9. See particularly W. Howarth, 'Poisonous, Noxious or Polluting: Contrasting Approaches to Environmental Regulation', Modern Law Review (1993) 56, p 171.
10. See s 33(1) EPA 1990 and s 85 WRA 1991.
11. See subsections 85(6) Water Resources Act 1991, 33(9) and 23(2)-(4) Environmental Protection Act 1990
12. See subsections 85(6) Water Resources Act 1991, 33(9) and 23(2)-(4) Environmental Protection Act 1990
13. W.G. Carson, 'Some Sociological Aspects of Strict Liability', Modern Law Review (1970) 33, p 396; K. Hawkins, Environment and Enforcement (Clarendon, 1984); and R.G. Singer, 'The Resurgence of Mens Rea - The Rise and Fall of Strict Criminal Liability', Boston College Law Review (1989) 30, pp 337-408.
14. W.G. Carson, 'Some Sociological Aspects of Strict Liability', Modern Law Review (1970) 33, p 396; K. Hawkins, Environment and Enforcement (Clarendon, 1984); and R.G. Singer, 'The Resurgence of Mens Rea - The Rise and Fall of Strict Criminal Liability', Boston College Law Review (1989) 30, pp 337-408.
15. W.G. Carson, 'Some Sociological Aspects of Strict Liability', Modern Law Review (1970) 33, p 396; K. Hawkins, Environment and Enforcement (Clarendon, 1984); and R.G. Singer, 'The Resurgence of Mens Rea - The Rise and Fall of Strict Criminal Liability', Boston College Law Review (1989) 30, pp 337-408.
16. The prosecution of a farmer for a water pollution incident. The prosecutor did not allege any carelessness on the part of the farmer and admitted that his conduct on discovery of the incident had been 'exemplary'.
17. These aggravating factors which seem to have featured in prosecuted cases, correspond very closely to the Agency's presumptions of prosecution in its revised prosecution policy. See Enforcement and Prosecution Policy, Environment Agency, November 1998. The Agency's recently revised Enforcement and Prosecution Policy will soon appear on its website.
18. Integrated Pollution Control, a statutory regime which regulates the operating conditions of sites handling 'prescribed processes'. Processes are 'prescribed' under Part I of the Environmental Protection Act 1990.
19. Rochdale Magistrates' Court.
20. Knowsley Magistrates' Court.
21. See Part I, Environmental Protection Act 1990.
22. Warrington Crown Court.
23. One hundred Environment Agency field officers participated in this research by completing an attitude survey. The survey was designed to assist discussion of enforcement cultures and strategies which exist within the Agency.
24. This argument is a common one, also used in mitigation in a recent prosecution against British Nuclear Fuels Limited for six years' failure to repair a bridge carrying radioactive waste-pipeline. See further 'BNFL fined £20,000 for disregarding safety', Guardian, 5.4.97, p 6.
25. As understood by the researcher and as commented upon by a Waste Regulation Officer present at the court.
26. The defendant was fined £4,000 for its three years of operation without a licence.
27. C. Wells, Corporations and Criminal Responsibility, (Clarendon, 1993) at 62. See generally on the concept of corporate responsibility, B. Fisse, 'Recent Developments in Corporate Criminal Law and Corporate Liability', University of New South Wales Law Journal (1990) 13, p 1; C.M.V. Clarkson, 'Kicking Corporate Bodies and Damning Their Souls', Modem Law Review (1996) 59(4), p 557; and M. Levi, 'Business Regulatory Offences and the Criminal Law', Company Lawyer (1984) p 251.
28. C. Wells, Corporations and Criminal Responsibility, (Clarendon, 1993) at 62. See generally on the concept of corporate responsibility, B. Fisse, 'Recent Developments in Corporate Criminal Law and Corporate Liability', University of New South Wales Law Journal (1990) 13, p 1; C.M.V. Clarkson, 'Kicking Corporate Bodies and Damning Their Souls', Modem Law Review (1996) 59(4), p 557; and M. Levi, 'Business Regulatory Offences and the Criminal Law', Company Lawyer (1984) p 251.
29. C. Wells, Corporations and Criminal Responsibility, (Clarendon, 1993) at 62. See generally on the concept of corporate responsibility, B. Fisse, 'Recent Developments in Corporate Criminal Law and Corporate Liability', University of New South Wales Law Journal (1990) 13, p 1; C.M.V. Clarkson, 'Kicking Corporate Bodies and Damning Their Souls', Modem Law Review (1996) 59(4), p 557; and M. Levi, 'Business Regulatory Offences and the Criminal Law', Company Lawyer (1984) p 251.
30. C. Wells, Corporations and Criminal Responsibility, (Clarendon, 1993) at 62. See generally on the concept of corporate responsibility, B. Fisse, 'Recent Developments in Corporate Criminal Law and Corporate Liability', University of New South Wales Law Journal (1990) 13, p 1; C.M.V. Clarkson, 'Kicking Corporate Bodies and Damning Their Souls', Modem Law Review (1996) 59(4), p 557; and M. Levi, 'Business Regulatory Offences and the Criminal Law', Company Lawyer (1984) p 251.
31. NRA v Alfred McAlpine QBD [1994] 4 All ER 286 at p 300, per Morland J.
32. Impress (Worcester) v Rees (1971) 2 All ER 357.
33. Prosecution Memo: West Midlands Upper Trent Area, prosecution of December 1996.
34. NRA v Empress Car [1998] 1 All ER 481 (HL).
35. NRA v Wright Engineering [1994] 4 All ER 281.
36. The cases cited above at ns 20 and 21. See also, CPC(UK) v NRA (CA) [1995] Env LR 131 ; NRA v Yorkshire Water Services [1994] 3 WLR 1202; and more recently, Environment Agency v Brock plc [1998] JPL 968 (QBD).
37. See Singer's discussion of R v Woodrow 14 M & W 404, 153 Eng Rep 907; R.G. Singer, 'The Resurgence of Mens Rea - The Rise and Fall of Strict Criminal Liability', Boston College Law Review (1989) 30, pp 337-408.
38. See Singer's discussion of R v Woodrow 14 M & W 404, 153 Eng Rep 907; R.G. Singer, 'The Resurgence of Mens Rea - The Rise and Fall of Strict Criminal Liability', Boston College Law Review (1989) 30, pp 337-408.
39. A consideration mentioned in G. Richardson, 'Strict Liability for Regulatory Crime: The Empirical Research', Crim LR (1985) p 295, at p 303. The rhetoric of efficient enforcement has sometimes been accompanied by the view that environmental protection was so important as to trump considerations of criminal justice (see Alphacell, op cit, n 21 at 490-1; and NRA v Alfred McAlpine [1994] 4 All ER 286 at 300).
40. A consideration mentioned in G. Richardson, 'Strict Liability for Regulatory Crime: The Empirical Research', Crim LR (1985) p 295, at p 303. The rhetoric of efficient enforcement has sometimes been accompanied by the view that environmental protection was so important as to trump considerations of criminal justice (see Alphacell, op cit, n 21 at 490-1; and NRA v Alfred McAlpine [1994] 4 All ER 286 at 300).
41. A consideration mentioned in G. Richardson, 'Strict Liability for Regulatory Crime: The Empirical Research', Crim LR (1985) p 295, at p 303. The rhetoric of efficient enforcement has sometimes been accompanied by the view that environmental protection was so important as to trump considerations of criminal justice (see Alphacell, op cit, n 21 at 490-1; and NRA v Alfred McAlpine [1994] 4 All ER 286 at 300).
42. Op cit, n 20 at 489.
43. Failure to follow common practice makes it more difficult for a civil defendant to show he was not negligent; Morion v William Dixon (1909) SC 807; Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552.
44. The rhetoric of 'rights' and 'duties' in the context of environmental protection is prevalent in the dialogue of human rights and the environment. See for example, the 1994 Draft Declaration of Principles on Human Rights and the Environment, particularly paras 5 and 21.
45. (1994) 1 All ER 53 at 79.
46. An independent tort arising out of the case of Rylands v Fletcher (1868) LR 3 HL 330, which imposes liability on parties who allow 'things likely to do mischief' to escape from their control, which cause damage to other parties.
47. See P. de Prez, 'Environment Agency v ICI Chemicals & Polymers', Environmental Law & Management (1998) 10(4), pp 187-9. Legislative recognition of the inevitable risks associated with chemical storage is provided by a measure now contained in s 110 of the Water Act 1989, giving the Secretary of State power to regulate such storage, and the enactment of the Hazardous Substances Act 1990. The need for such a power has existed since Control of Pollution Act 1974 but has yet to be exercised.
48. Section 34(1) Environmental Protection Act 1990. This provision requires that persons who deal with waste should take all reasonable steps to ensure; no other person commits a waste related offence, to prevent the escape of waste, to ensure that the transfer of waste is only to authorised persons and that such transfer is accompanied by a written description of the waste.
49. Prosecution Memo: West Midlands Upper Trent Area, November 1996.
50. Preston Crown Court.
51. This type of argument was successful in avoiding liability in British Celanese v Hunt [1969] 2 All ER 1252, but in the 1990s Lord Goff refused to allow a use to be considered ordinary or natural by virtue of its creation of employment and being a small industrial community worthy of support (see the Cambridge Water case [1994] 1 All ER 53 at 79).
52. Section 4 of the Act.
53. '(D)evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs.' Taken from Our Common Future, Brundtland Report (1987).
54. For example, Agency prosecutors referred to: 'failure to have a system for supervising pumping operations', 'failure to identify substances in drums as containing iodine', 'failure to ensure pipework running across their land was secure', 'failure to make themselves familiar with their own pipework', 'failure to install overflow alarms', 'failure to take action to prevent a downstream flow of pollution', 'delay in reporting a pollution incident to the Agency' and evidence of previous pollution.
55. Bryant J in NRA v Egger (1992) Newcastle Upon Tyne, Crown Court, reported at Burnett Hall (1995) pp 351-4.
56. Knowsley Magistrates' Court.
57. Sections 1 (3) and 1 (4) EPA 1990.
58. A solvent often used for degreasing fabricated metal parts.
59. Widnes Magistrates' Court.
60. K. Hawkins, Environment and Enforcement (Clarendon, 1984) at 11.
61. R v Rotherham MBC & Safety Kleen UK Ltd ex parte William Rankin, Journal of Environmental Law (1990) 250, at 254.
62. In civil cases involving scientific/technical matters, the case may be heard in the Official Referee's Court (a specialist panel forming part of the High Court).
63. Widnes Magistrates' Court.
64. Ibid, n 17.
65. Chester Magistrates Court.
66. This case was subsequently heard on appeal in the High Court where a conviction was obtained.
67. The Chief Executive of the Agency said recently: 'Even the largest fines represent negligible costs for the largest companies. The Agency's largest fine last year represented the equivalent of a £15 fine on someone earning £30,000 a year.' Quoted in Environment Action, Environment Agency (bimonthly newsletter, October/ November 1997) p 3. See also M. Hornsby, 'Watchdog seeks tougher fines for big polluters', Guardian, 3.9.98, P 3; and 'Get Tough Courts Told', Environment Action (October/November 1998) 16, p 6. Although two recent heavy penalties may help to offset this. See op cit, n 38 where a fine of £300,000 was imposed and the £4 million fine imposed in the Sea Empress prosecution, January 1999 (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
68. The Chief Executive of the Agency said recently: 'Even the largest fines represent negligible costs for the largest companies. The Agency's largest fine last year represented the equivalent of a £15 fine on someone earning £30,000 a year.' Quoted in Environment Action, Environment Agency (bimonthly newsletter, October/ November 1997) p 3. See also M. Hornsby, 'Watchdog seeks tougher fines for big polluters', Guardian, 3.9.98, P 3; and 'Get Tough Courts Told', Environment Action (October/November 1998) 16, p 6. Although two recent heavy penalties may help to offset this. See op cit, n 38 where a fine of £300,000 was imposed and the £4 million fine imposed in the Sea Empress prosecution, January 1999 (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
69. The Chief Executive of the Agency said recently: 'Even the largest fines represent negligible costs for the largest companies. The Agency's largest fine last year represented the equivalent of a £15 fine on someone earning £30,000 a year.' Quoted in Environment Action, Environment Agency (bimonthly newsletter, October/ November 1997) p 3. See also M. Hornsby, 'Watchdog seeks tougher fines for big polluters', Guardian, 3.9.98, P 3; and 'Get Tough Courts Told', Environment Action (October/November 1998) 16, p 6. Although two recent heavy penalties may help to offset this. See op cit, n 38 where a fine of £300,000 was imposed and the £4 million fine imposed in the Sea Empress prosecution, January 1999 (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
70. The Chief Executive of the Agency said recently: 'Even the largest fines represent negligible costs for the largest companies. The Agency's largest fine last year represented the equivalent of a £15 fine on someone earning £30,000 a year.' Quoted in Environment Action, Environment Agency (bimonthly newsletter, October/ November 1997) p 3. See also M. Hornsby, 'Watchdog seeks tougher fines for big polluters', Guardian, 3.9.98, P 3; and 'Get Tough Courts Told', Environment Action (October/November 1998) 16, p 6. Although two recent heavy penalties may help to offset this. See op cit, n 38 where a fine of £300,000 was imposed and the £4 million fine imposed in the Sea Empress prosecution, January 1999 (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
71. The Chief Executive of the Agency said recently: 'Even the largest fines represent negligible costs for the largest companies. The Agency's largest fine last year represented the equivalent of a £15 fine on someone earning £30,000 a year.' Quoted in Environment Action, Environment Agency (bimonthly newsletter, October/ November 1997) p 3. See also M. Hornsby, 'Watchdog seeks tougher fines for big polluters', Guardian, 3.9.98, P 3; and 'Get Tough Courts Told', Environment Action (October/November 1998) 16, p 6. Although two recent heavy penalties may help to offset this. See op cit, n 38 where a fine of £300,000 was imposed and the £4 million fine imposed in the Sea Empress prosecution, January 1999 (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
72. fundamental difficulty with criminal law enforcement in this area, as identified by A. Ogus, Regulation: Legal Form and Economic Theory (Oxford University Press, 1994) at 79.
73. H. Croall, 'Sentencing the Business Offender', Howard Journal (1991) 30(4), 280 at 290.
74. Although this is probably about to change given that the Home Secretary has asked the Sentencing Panel created by the Crime and Disorder Act 1997 to give guidance to the Court of Appeal on sentencing in environmental cases. In the sibling area of health and safety regulation, the Court of Appeal has issued sentencing guidelines (see R v Home & Sons (Engineers) Ltd ( 1998) (CA) unreported) and may do the same for environmental offences as a result of the current appeal against sentence in the Sea Empress case (see '£4 million fine for oil spill may put port jobs in jeopardy', The Times, 16.1.99).
75. For a recent example, see A. Mehta and K. Hawkins, 'IPC and Its Impact: Perspectives from Industry', Journal of Environmental Law (1998), 10(1), 61-77.
76. In Trust for Tomorrow, Labour Party Commission Report on the Environment, (1994) p 50. Comparison can be drawn with the Companies Court as part of the Chancery Division. A model from which to develop our court structure may be the Land and Environment Division of South Australia's Supreme Court. See further, J. Minor, 'Environmental Court of Justice 1991', Journal of Environmental Law (1992), 4(1) 159; and W. Upton, 'Environmental Courts - The South Australian Initiative', Env Law (1994), 8(1/2) 12.
77. In Trust for Tomorrow, Labour Party Commission Report on the Environment, (1994) p 50. Comparison can be drawn with the Companies Court as part of the Chancery Division. A model from which to develop our court structure may be the Land and Environment Division of South Australia's Supreme Court. See further, J. Minor, 'Environmental Court of Justice 1991', Journal of Environmental Law (1992), 4(1) 159; and W. Upton, 'Environmental Courts - The South Australian Initiative', Env Law (1994), 8(1/2) 12.
78. In Trust for Tomorrow, Labour Party Commission Report on the Environment, (1994) p 50. Comparison can be drawn with the Companies Court as part of the Chancery Division. A model from which to develop our court structure may be the Land and Environment Division of South Australia's Supreme Court. See further, J. Minor, 'Environmental Court of Justice 1991', Journal of Environmental Law (1992), 4(1) 159; and W. Upton, 'Environmental Courts - The South Australian Initiative', Env Law (1994), 8(1/2) 12.
79. J. Bates, 'Examining Water Pollution Law and Regulation in Light of Current Government and EU Policy', (1997). Paper presented at Water Law Conference, London, February 1998.