Environmental Law Quarterly Update - Q1 2021
There are various grounds for the use of these powers and is it crucial that individuals and companies are aware of their obligations and rights when it comes to co-operating with the EA. For example, if an individual is required to provide information by an agent of the EA and they refuse, this can constitute a criminal offence. Alternatively, if the EA issues an environmental permit and the company and/or individuals fail to comply with its conditions, they can be prosecuted. As we explain in our blog here, prosecutions for non-compliance can be an extremely costly exercise. Our lawyers can provide specialist advice on what to do if these powers are exercised in relation to you or your business.
Where there are reasonable grounds to suspect an offence has been committed, the EA may invite an individual to attend a formal interview under caution in accordance with the Police and Criminal Evidence Act 1984 (PACE). Anything which is said in interview can be used for the purpose of criminal proceedings. Getting the right legal advice at this stage is crucial, as it is in every criminal investigation, and our team has years of experience in advising clients from enforcement notices and police interviews through to confiscation proceedings.
With the January 2020 announcement of the new Joint Unit for Waste Crime (JUWC) taskforce, ‘dedicated to tackling serious and organised waste crime’, it is clear that the likelihood of interventions and enforcement action being taken against businesses has increased significantly and, with it, the potentially considerable cost implications for individuals and businesses who are accused of non-compliance. It is therefore more important than ever for businesses to be aware of their obligations and seek advice early to mitigate potential losses.
We understand what is at stake for individuals and corporates who are accused of environmental crime. We can assemble a multi-disciplinary team to deal with all aspect of the enforcement of environmental law. We recognise that every situation requires an intelligent and carefully devised strategy.
Please contact one of our specialist lawyers.
Environmental law is a collective term encompassing aspects of the law that provide protection to the environment. It is spread across various practise areas and covers a vast range of environmental issues from littering to climate change.
It is one of the fastest growing areas of law, as environmental issues become more and more prevalent in the political and social consciousness.
Environmental crime is a term generally used to describe any illegal activity that harms the environment. The term covers activities such as the operation of a waste facility without a permit, to the illegal emissions of hazardous waste.
There are a wide range of environmental offences a person or business can commit in England and Wales. These are set out in a collection of different pieces of legislation and regulations, including but not limited to the Environmental Protection Act 1990, Environmental Permitting (England and Wales) Regulations 2010, Water Industry Act 1991, Transfrontier Shipment of Waste Regulations 2007 and Control of Pollution (Amendment) Act 1989.
As we talk about here and here, it is not only specific environmental offences that individuals could find themselves the target of. With the self-reporting nature of the regulatory system governing packaging recycling, it leaves individuals open to allegations of fraud, bribery and/or corruption. As two brothers found earlier this year (here), being found guilty of these offences can have significant implications.
Environmental crime is also an international issue, with bodies such as INTERPOL and the United Nations recognising a number of environmental crimes. International environmental crimes include offences such as illegal ivory trafficking, oil pollution, dumping of hazardous waste or overfishing of protective species. Our team have worked on cross-jurisdictional environmental crime matters and understand and can advise on the utility of mutual legal assistance mechanisms to investigate and prosecute such matters.
The principle environmental regulators and enforcing authorities are the Environment Agency (EA) in England and Natural Resources Wales (NRW) in Wales. The EA was created by the Environment Act 1995 and came in existence on 1 April 1996. The Environment Agency enforces legislation in a variety of ways, ranging from civil penalties which it administers directly to companies or individuals, to prosecutions where the criminal courts decide the appropriate penalty.
It is important to recognise however that local authorities often play a role in the management of environmental issues. Natural England, Marine Management Organisation and the Health and Safety Executive are also involved in monitoring and regulating environmental behaviours.
Environmental regulators have direct enforcement responsibilities for the investigation of breaches of environmental law, and a duty to apply regulatory powers to address offences falling within their remit.
The sanction for many environmental laws in England and Wales is prosecution in the criminal courts by the relevant regulator. The majority of cases are handled by the EA, but local authorities also play an important role.
Of course not all breaches of environmental law will result in prosecutions. Regulators have a number of non-prosecutorial powers at their disposal; from imposing conditions on permits to suspending or revocation of the permit entirely. Enforcement and clean-up notices are also powerful tools as they require the breach to be remedied and it is important for businesses to take these notices seriously. Where, for example, an environmental permit is granted to a business carrying out waste management services and that business carries out actions in breach of that permit, authorities have the power to issue an enforcement notice requiring the breach to be remedied. Under the Environmental Permitting (England and Wales) Regulations 2016, it is an offence to fail to comply with the requirements of an enforcement notice. Non-compliance brings the risk of costly confiscation proceedings.
Prosecutions can be brought against both individuals and corporate entities.
Regulators can also prosecute the business’ directors, managers, secretary or other similar officers (or person purporting to act in any such capacity), if it can be shown the offence was committed with their consent or connivance, or is attributable to their neglect.
On conviction, individuals and corporates can face unlimited fines and/or imprisonment in both the magistrates’ and crown courts. For some companies this means significant fines. For example Thames Water were fined £20.3 million in 2017 for leaks of untreated sewage entering the Thames. The use of large fines are said to have a useful deterrent effect, whilst also reminding directors and shareholders about their environmental obligations.
Alongside having to pay the prosecution’s costs for bringing the case, on conviction compensation orders (which can be significant) can also be made in relation to clearance costs. Confiscation orders can also be awarded for the amount calculated to be the benefit the defendant gained from the crime. Directors are also potentially liable to disqualification orders, which if granted and breached is a criminal offence punishable with up to 2 years’ imprisonment. Further, where there are reasonable grounds for believing a person will be involved in further relevant acts which the public require protection from, a Serious Crime Prevention Order (SCPO) can be ordered. A SCPO can last up to five years and can place prohibitions, restrictions or requirements on a person.
They can be. The EA’s dataset of prosecutions can be found here and the EA’s register of enforcement actions can be found here. Court proceedings are almost always open proceedings which can be freely reported, which allows the information to flow from the court room to the local and national press.
Our team understand the financial and reputation effect this type of publicity can bring and are highly experienced in managing cases to keep them away from public scrutiny.
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