The enforcement of pollution control laws in England and Wales: A case for reform?

Environmental and Planning Law Journal

Volumn 22, Issue 1, 2005, Pages 68-81

  Abbot, Carolyn ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 84855566023     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (98)

1. See House of Commons Environmental Audit Committee Sixth Report, Environmental Crime and the Courts (12 May 2004) HC 126. Available at The United Kingdom Parliament website http://www.publications.parliament.uk. Follow links from homepage "house of commons", then "house of commons publications on the internet", then "select committee publications" then "environmental audit" then "session 2003/04", then "environmental crime and the courts".
2. For example, Woods M and Macrory R, Environmental Civil Penalties: A More Proportionate Response to Regulatory Breach (University College London, 2003).
3. There has been much discussion as to whether or not legislatures rely too heavily on the criminal law. Most recently, Husak has argued that the criminal law should be used only as a last resort, when there are no other effective means of attaining the legislative objective. Husak D, "The criminal law as a last resort" (2004) 24(2) OJLS 207.
4. R v Cunningham [1957] 2 QB 396.
5. For a detailed discussion of strict liability and its use in UK environmental statutes see, Abbot C, "Friend or foe: strict liability in English environmental licensing regimes" (2004) 16(2) Environmental Law and Management 215.
6. There are a few notable exceptions to this. For example in relation to waste management, the duty of care provisions under Environmental Protection Act 1990 (UK), s 34, and packaging waste offences under Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (UK) (SI 1997/648), reg 34, which only cover "unreasonable" conduct.
7. The word "cause" is also common in Australian environmental legislation with a number of statutes imposing liability on those who intentionally, recklessly or negligently cause serious environmental harm. See for example s 59E, Environment Protection Act 1970 (Vic) and s 437 Environment Protection Act 1994 (Qld).
8. See Empress Car Co v National Rivers Authority [1999] 2 AC 22.
9. Environmental Protection Act 1990 (UK), s 13 and reg 25 Pollution Prevention and Control (England and Wales) Regulations 2000 (UK) (SI 2000/1973).
10. This is particularly apparent in the case of offences under the waste management-licensing regime. See for example s 33(7)(a) Environmental Protection Act 1990 (UK).
11. For example, Richardson G, "Strict liability for regulatory crime: the empirical research" [1987] Crim LR. 295
12. Ashworth A, "Is the criminal law a lost cause?" (2000) 116 LQR 225
13. Howard C, Strict Responsibility (Sweet and Maxwell, 1963).
14. Ashworth A, Principles of Criminal Law (4th ed, OUP, 2003) pp 166-167.
15. Environment Agency, Enforcement and Prosecution Policy (November 1998), para 12.
16. "Environmental Offences: The Panel's Advice to the Court of Appeal" (1st March 2002) para 6. Available at http://www.sentencing-guidelines.gov.uk. Follow links from homepage to "advice" then "environmental offences".
17. For example, see "offences" under the Environment Protection Act 1970 (Vic) and the Protection of the Environment Operations Act 1997 (NSW).
18. For an excellent summary of deterrence v compliance strategies see Veljanovski CG "The economics of regulatory enforcement" in Hawkins K and Thomas J (eds), Enforcing Regulation (Kluwer-Nijhoff Publishing, 1984).
19. For example, Richardson G, Ogus, AI and Burrows P, Policing Pollution: A Study of Regulation and Enforcement (OUP, 1983).
20. Hawkins K, Environment and Enforcement: Regulation and the Social Definition of Pollution (OUP, 1984).
21. Hawkins, n 17, p 130.
22. Bell S and McGillivray D, Environmental Law (5th ed, Blackstones, 2000) p 243. In fact, it has been argued that the movement towards more punitive regulation is mirrored in other areas of control such as health and safety regulation and competition law.
23. See further Baldwin R, "The new punitive regulation" (2004) 67(3) MLR 351.
24. Environmental Agency, 2000, n 13, p 1.
25. Environment Agency, Spotlight on Business Environmental Performance in 2003 (July 2004), p 5.
26. Environment Agency, Annual Report and Accounts 1999-2000, p 131.
27. Environment Agency, n 22, p 129.
28. This rise is not set to continue. DEFRA's budget has been under severe pressure since the outbreak of foot and mouth disease. Grant-in-aid to the Agency is due to drop to £113.4 million in 2004/05. See Environment Agency Corporate Plan 2004-07 p 44. Available at http://www.environment-agency.gov.uk. Follow links "about us", then "publication" then "corporate publications", then "corporate plan 2004-07".
29. Environment Agency, n 13.
30. Environment Agency, n 13, para 1.
31. Environment Agency, n 13, para 4.
32. Environment Agency, n 13, para 8.
33. For example. Environmental Protection Act 1990 (UK), s 13
34. Pollution Prevention and Control (England and Wales) Regulations 2000 (UK), reg 24.
35. For example Environmental Protection Act 1990 (UK), s 14
36. Pollution Prevention and Control (England and Wales) Regulations 2000 (UK), reg 21.
37. Anti-Pollution Works Regulations 1999 (SI 1999/1006), reg 2.
38. Information provided by the Environment Agency. For more information see http://www.environment-agency.gov.uk.
39. Environmental Protection Act 1990 (UK), s 38.
40. "Agency applies fit and proper rules in revocation" (2003) 347 ENDS Report 15.
41. Khanna criticises the utility of corporate criminal liability, arguing in favour of a corporate civil liability regime. Khanna VS, "Corporate criminal liability: what purpose does it serve?" (1996) 109 Harv L R 1477.
42. For example, Wells C, "Corporate liability for crime: the neglected question" (1995) International Banking and Financial Law 42
43. Goode M, "Corporate criminal liability" Australian Institute of Criminology Conference Proceedings, 26 Environmental Crime 1993.
44. For example Environmental Protection Act 1990 (UK), s 157.
45. "Agency Flounders with Prosecution Policy" (2001) 315 ENDS Report 3.
46. Environment Agency, n 21.
47. Dupont C and Zakkour P, "Trends in environmental sentencing in England and Wales" (2003). The research was commissioned by DEFRA and is available on http://www.defra.gov.uk/environment/justice/pdf/erm-sentencing.pdf, viewed 4 January 2005.
48. Sentencing Advisory Panel, n 14, para 14. Offences considered by the Panel are listed in Annex A to the report.
49. Dupont and Zakkour, n 40, p 26.
50. These amounts correspond to the standard scale of fines on an adult prescribed under the Criminal Justice Act 1982 (UK), s 37.
51. This is the average fine across both the Magistrates' Court and the Crown Court.
52. Environment Agency, Spotlight on Business Environmental Performance 2002, p 3.
53. Environment Agency, n 45, p 1.
54. Environment Agency, n 13, p 5.
55. Dupont and Zakkour, n 40, p 23.
56. Environmental Audit Committee n 1, para 18.
57. Information presented by the Environment Agency in oral evidence given to the Environmental Audit Committee.
58. Environmental Audit Committee, n 1, para 13.
59. Sentencing Advisory Panel, n 14.
60. Aggravating factors include the deliberate commission of an offence for financial gain and the unwillingness of the offender to respond to informal advice and warnings from the Agency. Mitigating factors include a genuine and reasonable lack of awareness about the regulatory controls.
61. The Magistrates' Association, "Fining of companies for environmental and health and safety offences" (May 2001). See http://www.magistrates-association.org.uk for more information.
62. Dupont and Zakkour, n 40, p 30.
63. Sentencing Advisory Panel, n 14, para 29.
64. Dupont and Zakkour, n 40, p 12.
65. Data taken from Dupont and Zakkour, n 40, p 26. "Other outcomes" relate to all criminal penalties apart from fines and custodial sentences, for example compensation orders, absolute/conditional discharges and compensation.
66. Note that Pt 12 of the Criminal Justice Act 2003 allows community sentences to be imposed in lieu of fines rather than in lieu of imprisonment.
67. Environmental Protection Act 1990 (UK), s 26
68. Pollution Prevention and Control (England and Wales) Regulations 2000 (UK), reg 35.
69. Dupont and Zakkour, n 40, p 14.
70. The power to award costs is contained in Pt II of the Prosecution of the Offences Act 1985.
71. For example Environment Protection Act 1970 (Vic), s 62B
72. Protection of the Environment Operations Act 1997 (NSW). Offences dealt with by way of a penalty notice generally impose strict liability.
73. Woods and Macrory, n 2, para 7+9.
74. Environmental Audit Committee, n 1, para 43.
75. For example Coffee JC, "No soul to damn, no body to kick: An unscandalised inquiry into the problem of corporate punishment" (1980) 79 Mich L R 386
76. Jefferson M, "Corporate criminal liability: the problem of sanctions" (2001) 65 Journal of Criminal Law 235.
77. Sentencing Advisory Panel, n 14, para 25.
78. Environmental Audit Committee, n 1, para 31.
79. Fisse B and Braithwaite J, The Impact of Publicity on Corporate Offenders (State University of New York Press, 1983).
80. Coffee, n 66.
81. Environment Protection Act 1970 (Vic), s 67AC(2)
82. Protection of the Environment Operations Act 1997 (NSW), s 250(1)(a).
83. Environment Protection Authority (Vic), Annual Report 2003/04: Compliance Report, pp 30-45.
84. In a recent study, Environment Agency officers stated that adverse publicity was the most important consequent of prosecution, particularly when applied to large-scale industry that has a reputation to damage. See de Prez P, "Beyond judicial sanctions: the negative impact of conviction for environmental offences" (2000) 2 Environmental Law Review 11.
85. Supplementary memorandum from the Environment Agency presented to the Environmental Audit Committee at 7(c). Available at http://www.publications.parliament.uk/pa/cm200304/cmselect/cmenvaud/126/4012208.htm viewed January 10 2005.
86. Supplementary memorandum, n 74, para 7(b).
87. For example, Environment Protection Act 1970 (Vic), s 67A(2)(c)
88. Protection of the Environment Operations Act 1997 (NSW), s 250(1)(c).
89. Environment Protection Authority (Vic), n 72.
90. Supplementary memorandum, n 74, para 7(b).
91. Environmental Audit Committee, n 1, para 33.
92. DEFRA Consultation Document, Fly-Tipping Strategy (February 2004), para 37. Available on DEFRA website http://www.defra.gov.uk. Follow links from homepage: "consultations", then "closed consultations", then "fly tipping strategy".
93. For example, Protection of the Environment Operations Act 1997 (NSW), s 249(1).
94. For example, Grant M, "Environmental court project: final report" (September 1999) available on www.opdm.gov.uk
95. Woods and Macrory, n 2. Various models have been proposed but in all cases, the remit of the court would extend beyond the hearing of criminal prosecutions to include, for example, environmental appeals and judicial review.
96. For example, Environmental Audit Committee, n 1, paras 44-45.
97. Environmental Audit Committee, n 1, para 45.
98. Supplementary Memorandum, n 74, para 3.