Environmental Crime

Environmental crime is a broad and complicated area, covering any illegal activity that harms the environment from the operation of a waste facility without a permit to illegal dumping of sewage or emissions of hazardous waste.
 

There are a wide range of environmental criminal offences which a person or business can commit in England and Wales, and these are set out in various statutes and regulations. The agencies responsible for enforcement of environmental law (principally the Environment Agency, but also including Natural England, Natural Resources Wales and the Health and Safety Executive) between them have numerous investigatory and enforcement powers, including powers of entry, powers to request information, documents or records, and powers to enforce or prohibit certain behaviour through notices.

There are various grounds for the use of these powers, and the penalties for non-compliance with conditions set by the agencies, as well as for breaching the environmental crime laws and regulations themselves, can be severe. As we explain in this blog, prosecutions for non-compliance can be an extremely costly exercise.

It is therefore vital to seek early, expert legal help. Our lawyers can provide specialist and multi-disciplinary advice on how to comply with environmental law and what to do if a regulator exercises its powers in relation to you or your business. We understand what’s at stake for individuals and corporates who are accused of environmental crime, and we recognise that every situation requires an intelligent and carefully devised strategy.

How we can help

We provide robust, reassuring and discreet advice to companies and individuals, including in relation to:

• Conducting corporate internal investigations to identify issues and scope risks
• Giving advice in response to regulatory investigations into environmental offences
• Helping respond to dawn raids, where property is seized, individuals are arrested or interviewed under caution
• Assisting with complex cross-border matters, often spanning multiple jurisdictions and mutual legal assistance requests, as well as with domestic cases
• Advising on general duties and compliance obligations of directors and officers

For more information, please contact one of our specialist lawyers.

ENVIRONMENTAL CRIME Q&A

What is ‘Environmental Law’?

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.

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What is ‘Environmental Crime’?

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.

As we have previously written 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. 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.

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Who are the principle enforcing authorities for environmental law in England and Wales?

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.

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What are the key environmental crime laws and regulations?

These include, but are 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.

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How are environmental offences prosecuted?

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.

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Who can be prosecuted for an environmental offence?                                                                  

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.

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What penalties are there for environmental crimes?

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.

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.

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 can also be ordered; this can last up to five years and can place prohibitions, restrictions or requirements on a person. 

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Are prosecutions and enforcement actions for environmental offences made public?

They can be. For example, among other information, the government publishes the EA’s dataset of prosecutions and register of enforcement actions, and Natural England’s register of enforcement actions.

Court proceedings are almost always open proceedings which can be freely reported. This allows the information to flow from the court room to the local and national press.

We 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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