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LL.M5100: LL.

M DISSERTATION

The issues with fitting environmental offences into a traditional criminal justice
system: a case study of water pollution offences and corporate liability.

32178469

Dissertation presented in partial fulfilment of the degree of LL.M Environment and


Law

Supervisor: Dr. Ben Mayfield


and
Dr. Gary Potter

September 2018

Word count: 19,515


Table of Contents

Acknowledgements 3

Abstract 4

Introduction 5

Aims 6

Objectives 6

1.0 Suitability of the Courts 9

1.1 Introduction 9

1.2 Complexities of a traditional justice system 9

1.3 The Magistrates and the Crown Court 11

1.4 Attitudes to environmental offences 15

1.5 Conclusion 19

2.0 Water Pollution Laws and Corporate Liability 21

2.1 Water pollution 21

2.2 Water Resource Act 1991 and Environmental Permitting (England and Wales) Regulations
(2010) (2016) 22

2.3 Strict liability 24

2.4 Corporate criminal liability 25

2.4.1 Vicarious criminal liability 28

2.4.2 Criminal personal liability 30

2.5 Corporate liability defences 34

2.6 Conclusion 36

3.0 Sentencing 37

3.1 Introduction 37

3.2 Sentencing of organisations 38

3.3 2014 Sentencing Guidelines for Environmental Offences 41


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3.3.1 Sentencing very large organisations 42

3.4 Environmental Agency (EA) - prosecutor and educator? 48

3.5 Conclusion 54

4.0 Alternative enforcement methods: a discussion of civil v criminal sanctions 55

4.1 Introduction 55

4.2 The Environmental Agency: an inadequate enforcer? 56

4.3 Deregulation 59

4.4 Macrory Review 61

4.5 Civil v criminal sanctions - more similar than we think? 63

4.6 What is the right way? 66

4.7 Stigma 67

4.7.1 Naming and shaming 67

4.8 Conclusion 68

5.0 Conclusion 70

6.0 Appendix 72

6.1 Recommendations 72

7.0 Bibliography 75

7.1 Cases 75

7.2 Legislation 76

7.3 Books 76

7.4 Journals 77

7.5 Other (Websites, reports, reviews, guidelines) 80

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Acknowledgements

Firstly, I would like to thank both my supervisors Dr. Ben Mayfield and Dr. Gary Potter for their
support throughout writing this dissertation and their constantly helpful advice.

Secondly, I would like to thank all my family and friends who have supported me and endured
many hours listening to me talk about my dissertation topic.

Lastly, I want to give thanks to all the scholars who have already contributed to this topic and have
allowed me to make my own contribution.

Thank you.

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Abstract

An attempt to use criminal sanctions for environmental offenders has led to an array of issues.

Fitting environmental offences into a traditional criminal justice system has produced an era of

decriminalisation and extended powers to regulators in the form of civil sanctions. The inexperience

of the courts along with their personal attitudes towards environmental offences has commonly led

to a reservation to hand down high sentences. In this dissertation, the main prosecutor the

Environmental Agency (EA) will be criticised for its particular ‘cherry-picking' of cases to

prosecute and its deviation from its Enforcement and Prosecution Policy (EPP). A ‘case-study’ of

the strict liability issues in environmental law is examined in the form of water pollution laws and

the problems that arise from hearing cases without the requirement of a guilty mind in a system

based entirely on proving this important factor, with a focus on the potential corporate liability. The

patterns of sentencing are analysed alongside the 2014 Sentencing Guidelines for Environmental

Offences, which are also critiqued due to the new issues they present to the judiciary. This

dissertation will delve into the matter of regulatory offences and criminal sanctions with the

Macrory Review and Hampton Report discussed next to key deregulation laws. Finally, concluding

that perhaps the EA have been ‘captured’ by the industry they are attempting to regulate this

dissertation will bring the popular capture theory to environmental law and ultimately discuss, inter

alia, whether civil sanctions are in breach of basic human rights.

Key words: criminal sanctions; courts; Environmental Agency; strict liability; corporate liability;

sentencing; capture theory; civil sanctions; deregulation

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Introduction

This dissertation seeks to explore a number of contentious issues within environmental law, in

particular adding to the debate as to whether environmental offences are to be considered truly

criminal in nature. A number of relatively new notions and ‘smoking-guns’ are explored such as the

capture theory in environmental law and the EA’s ability to prosecute. As this dissertation will

discuss, for many years there have been issues prosecuting environmental offenders within a

traditional criminal justice system. The issues are both societal such as environmental offences not

deserving of the stigma and harshness of criminal law, but also legal, certain environmental

offences do not require guilt to be proven (strict liability laws), however, mens rea (guilty mind) is a

fundamental element of criminal law. A case study on water pollution laws and the relevant cases is

explored to discuss the issues surrounding strict liability as well as the following corporate liability

and defences that can arise. Water pollution laws are strict in nature due to the societal and

environmental harms that they produce, the extent of this harm is discussed as well as the

effectiveness of the law to deal with this harm. Moreover, the range of corporate liability is

conversed with regards to sentences handed down by the judiciary by assessing fines against the

turnover of large corporations. Although the law may find an organisation liable, the extent of this

liability in practice will be highlighted and analysed. The critique of criminal sanctions has

therefore led to a number of extended powers to regulators through deregulation laws that are

manifested as civil sanctions. The use of both criminal and civil sanctions are discussed in practice

weighing up whether these new extended powers are beneficial to reprimanding environmental

offenders. The aims and objectives of this dissertation can be seen on the next page:

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Aims

- To evaluate the different roles and attitudes of the Magistrates Court and Crown Court in

environmental cases

- To determine the EA’s role in environmental enforcement and to measure whether they are fit

enough to prosecute environmental cases

- To evaluate the strict liability nature of water pollution laws and subsequent corporate liability

- To critically discuss the sentencing patterns in environmental law and the effect the 2014

Guidelines have had

- To recognise other enforcement methods utilised and issues associated with them and discuss the

deregulation of environmental offences and its possible conflict with key human right law

Objectives

- Use studies into the attitudes of the judiciary and the powers afforded to them by the law to

assess their view of environmental offences and how they are able to act

- Analyse the EA’s EPP along side with the cases it has chosen to prosecute, and determine

whether the Agency are taking ‘easy-wins’ to court

- Discuss the strictness of the law with respect to water pollution offences and determine the

potential defences to corporate liability

- Critically analyse the level of fines against corporate turnover to attempt to conclude fines are

too low, as well as measuring the success of the 2014 Sentencing Guidelines.

- Analyse key deregulation laws and reports to understand civil sanctions with respect to

environmental offenders and its practicality

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The way in which these aims and objectives will be reached is through four specific chapters which

are discussed below.

This dissertation starts with a discussion in Chapter 1 on the Suitability of the Courts, namely

evaluating the varying powers between the Magistrates and Crown Court and how this effects the

sentencing of environmental offenders. It critically analyses the fundamental issue at the focus of

environmental law, that being trying environmental cases in a traditional criminal justice system

given the complex and evolving nature of the environment. The views of the judiciary are also

discussed with the use of studies on attitudes of environmental offences. This is extremely

important as the way in which the public and courts see environmental offences, usually seeing

them as not criminal in nature affects the way in which they are sentenced. Chapter 2 on Water

Pollution Laws and Corporate Liability takes the issues discussed in the previous chapter and puts

them into practice and discusses the problems that occur when trying contentious water pollution

cases. This black-letter chapter additionally discusses how environmental laws being ‘shoe-horned’

into criminal law has created a deviation from fundamental principles of criminal law within the

courts. This deviations include moving away from traditional legal caution and the principle of

novus actus interveniens. The question arises “if we want to try environmental cases in criminal

courts then surely we must be fair and apply the same principles of criminal law?”, if the answer is

no, then we need to introduce specialist environmental courts in the UK as per my suggestion in the

Appendix. Sentencing has arguably been the area that most people have critiqued, mainly the low

level of sentences and lax view on guidelines to sentence environmental offenders by the judiciary.

The ‘smoking-gun’ of this dissertation becomes apparent in Chapter 3 on Sentencing where a

critique of the EA’s ‘cherry-picking’ and deviation from their EPP is producing a ‘negative-

feedback’ loop leading to the low level of sentencing. Ironically, the regulators causing this (EA) are

the main prosecutors of environmental offenders and those primarily criticising the courts. The
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critique on the EA is continued in Chapter 4 on Alternative enforcement methods: a discussion of

civil v criminal sanctions concluding that the Agency has been ‘captured’ by the industry they are

attempting to regulate as well as drawing conclusions to possible conflicts of interest. This last

chapter also discusses the use of civil sanctions as the alternative to criminal sanctions and the

issues that may still arise, as well as highlighting a potential breach of human rights.

A number of suggestions for hearing environmental offences in criminal courts and to assist the EA

in prosecuting environmental cases is provided at the end of these four chapters in the Appendix

under Recommendations.

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1.0 Suitability of the Courts

1.1 Introduction

This first chapter will discuss the issues surrounding the courts that try environmental cases, namely

the Magistrates and the Crown Court, and how these issues affect the liability of organisations

committing environmental offences. It will begin to discuss the overarching issue that is

environmental offences and environmental laws not fitting perfectly into the traditional criminal

justice system, given their ever changing and complex nature. This chapter will then go on to

discuss among other things the negative feedback loop created by the EA and how this affects the

courts and their subsequent decisions. A comparison of the powers that both courts have and how

this may impact their decisions will be discussed alongside key legislation which disadvantages the

main court trying these cases, the Magistrates. This chapter will being to conclude by taking a

socio-legal angle and analysing a number of studies on the attitudes and actions of the courts

towards environmental offences to garner an understanding into the reasons of their actions when

hearing cases of environmental nature. This discussion will also delve into the socio-moral

relationship between judges and the actors rather than just solely looking at their actions. The

importance of this chapter is, inter alia, to understand the interesting ways in which the decision

makers (judges) interact with environmental offences and their offenders.

1.2 Complexities of a traditional justice system

As global demands changes, naturally the way in which we operate does so too. This could mean

increasing our use of fossil fuels, relying on natural resources more often or even turning to green

energy, no matter which option the laws and regulations governing these are changing at a fast pace.

Increasing complexity and changes in environmental law has meant that this sector of law does not

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easily fit into the “normal conceptual model of criminal law”.1 The difficulty of fitting

environmental law which is seen as inherently un-criminal or at best quasi-criminal is displayed

when environmental cases are being taken to court and consequently affects the extent of liability

held by an organisation.

The wide spectrum of offences that can be classified into ‘environmental crime’ and the vast

amount of issues it attempts to tackle means that there is no fully understood meaning as to what

does and does not come under the term.2 This in turn causes a problem with regards to attempting to

‘shoe-horn’ it into a an area of law (criminal) that relies on complete certainty.3 Here is where strict

liability laws which are discussed in the next chapter were born, this ultimately allowed quasi-

criminal offences to be tried in full criminal courts. Perhaps if we had environmental courts as will

be discussed, then sentencing of environmental cases would not be such an issue.

Environmental law commonly has a multitude of victims which principally includes the

environment.4 Given the unique deviation from traditional victims in criminal law to those in

environmental law more problems occur when attempting to try these type of cases before a

traditional criminal court.

1Terence Moran, (2005) ‘Magistrates’ Courts and Environmental Regulators – Attitudes and Opportunities’,
Journal of Environmental Health Research, Vol 4 (issue 1). p.25

2House of Commons - Environmental Audit Committee, Environmental Crime and the Courts, Sixth Report
of Session 2003–04, Vol 1
3Refer to Chapter 2 and the discussion around the need of mens rea and actus reus for a complete guilty
verdict. Realistic prospect of conviction from Chapter 3 also refers to certainty of a successful guilty verdict.
4 Yingyi Situ and David Emmons, Environmental Crime (SAGE 2000).
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Lord Salmon in the iconic Alphacell v Woodward5 case judgement stated himself that river pollution

laws being tried under a criminal justice system were “not criminal in any real sense”.6 Lord

Salmon’s stance is not in isolation with many judges tending to favour this view. A collection of no

clear victims and the lack of criminality that comes with environmental offences has been a reason

for arguing that “they should carry neither the stigma nor perhaps the punishment of true criminal

behaviour”.7

1.3 The Magistrates and the Crown Court

The lower Magistrates court has been the leading court in which environmental cases are heard in

with almost twenty-one times the amount of cases being heard in the lower courts rather than the

higher Crown Court.8 This is due to the simple nature of strict liability and the removal of proving

guilt, which means the ‘lay-people’9 are able to hear these cases in the Magistrates Court with only

those serious cases being referred to the Crown Court.10 Those practising in the Crown Court are

professional judges compared to those working as Magistrates who, as mentioned, are ordinary

people with no necessary legal education.11

5 Alphacell Ltd v Woodward [1972] 2 W.L.R. 1320


6 Lord Salmon judgement in ibid
7 Terence Moran, Legal Competence In Environmental Health (E & FN Spon 2004), p.185
8Mitsilegas, V., Fitzmaurice, M., Fasoli, E. (2015). Fighting Environmental Crime in the UK: A Country
Report. Study in the framework of the EFFACE research project, London: Queen Mary University of
London
9“A person without professional or specialized knowledge in a particular subject.” 'Layperson | Definition
Of Layperson In English By Oxford Dictionaries' (Oxford Dictionaries | English, 2018) <https://
en.oxforddictionaries.com/definition/layperson> accessed 11 July 2018.
10 no.8, p.60
11Berni Bell and Christian Dadomo, 'Magistrates' Courts And The 2003 Reforms Of The Criminal Justice
System' (2006) 14 European Journal of Crime, Criminal Law and Criminal Justice.
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There is widespread criticism with respect to these ‘lay-people’ in the Magistrates being capable to

try complex and often scientific environmental cases and the potential for making the wrong

decisions, affecting corporate liability.12 Having said this the amount of cases being tried in the

Magistrates continues to rise. This is not a novel idea and has already been acknowledged, with

Lord Woolf stating that these new notions in environmental law can be “extremely challenging for a

lay tribunal”.13 So should it be allowed to continue? This continuation of non-experts making large

judicial decisions is extremely damaging and another nod towards the use of experts in court rooms

as will be discussed shortly.

The use of the Magistrates to try almost all of the environmental cases has also been greeted badly

by the main prosecutor the EA, which has fuelled a negative feedback loop as investigated by

Adshead and Andrew.14 The EA often look at the inexperience of ‘lay-people’ in the Magistrates

court and consequently decide not to convict a case. However when doing this, the courts

environmental law experience does not increase, therefore a circle occurs where environmental

cases are not tried due to inexperience and experience does not increase due to prosecutions not

being pursued.15

A study by Dupont and Zakkour took one court in the South of England and gathered results from

32 respondents.16 Out of these respondents almost half had not dealt with any environmental

12 Leon Radzinowicz and Joan Faye Sendall King, The Growth Of Crime (Hamilton 1977).
13Woolf Lord Justice (1992) Are the Judiciary Environmental Myopic, 4th Annual Garner Lecture, Journal
of Environmental Law, Vol 4, No.1.
14Julie Adshead and Tim Andrew, 'Environmental Crime And The Role Of The Magistrates’ Courts' [2009]
RICS COBRA Research Conference, University of Cape Town, 10-11th September 2009. pp.1147-1160
15 ibid, p. 1152
16Dupont, C. and Zakkour, P. (2003) ‘Trends in Environmental Sentencing in England and Wales’, A Report
by Claire Dupont and Dr. Paul Zakkour, Environmental Resources Management Ltd. (ERM), November
2003 DEFRA.
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prosecutions and a third had encountered one a year.17 The low level of prosecutions brought to the

courts and the high number of Magistrates across the United Kingdom fuels the loop discussed

above and produces extremely low numbers of cases passed over the Magistrates desk and doors

not increase experience. A paramount issue which will be discussed in the coming chapters is that of

environmental training within the courts, this itself brings amount a number of problems. Issues

occur as the training received for environmental law tends to come from the lead prosecutor in the

UK, the EA, leading to a conflict of interest.

Critics of the view just put across regarding the unfamiliarity of environmental issues among the

judiciary might argue that there has not been any problems with the courts in preceding and

sentencing other unfamiliar issues such as marriage.18 However, cases such as marriage are

experienced by the courts more often. Given the low level of prosecutions of environmental

offences19 it should be no shock and no one should be able to criticise the Magistrates and even the

Crown courts for their lack of knowledge, but instead look toward those regulators who should

prosecute more often.

The law itself has also disadvantaged the power that these courts have. The Proceeds of Crime Act

2002 gives the Crown Court the power to order for any money that was gained through a crime to

be recovered. When large corporations or individuals begin to cut corners on environmental laws

and regulation it is usually for the aim of maximising profit especially in companies,20 this law

17 ibid
18Gunningham N. (1974) Pollution Social Interest and the Law, Law in Society Series, Martin Robertson,
London.
Paul Stookes (2010) Costing the Earth – Guidance for Sentencers, Environmental Law Foundation and the
19
Magistrates Association, London.

Spyridon Stavropoulos, Ronald Wall and Yuanze Xu, 'Environmental Regulations And Industrial
20

Competitiveness: Evidence From China' (2017) 50 Applied Economics.


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therefore allows money from big polluters to be recovered, although this sounds promising - there

is a problem. The problem lies in that the majority, over 90% of environmental cases, are heard by

the Magistrates court who have not been given this power through the law, making it impossible to

recover money from crimes.21 Given this situation it would be wise to provide the Magistrates with

the same powers as the Crown court in respect to the Proceeds of Crime Act 2002. Devolution of

power to the Magistrates is not a new concept, the Legal Aid, Sentencing and Punishment of

Offenders Act 2012, section 85 allowed the lower courts to have unlimited fines, which was

previously capped at £20,000, putting them on par with the Crown court. So if the courts want to

take a proactive approach to environmental offences, why are they not moulding the law to the

situation?

The Magistrates court has also been criticised as will be discussed in the following chapters for not

referring cases to the Crown court, with the chance to imprisonment of company individuals such as

directors.22 The often cited excuse is the hard onus of proving mens rea which will come up

numerous times. However, despite the law being strict and not needing to prove guilt, if prosecutors

and the courts are willing to use criminal routes based on guilt, they should be willing to go the

whole way and attempt to prove mens rea in environmental offences which will have harsher

punishments, however, this has not been seen.23 It is seemingly easier to avoid responsibility and

instead of attempting to stop the issue at the source (individuals within companies), other easier

routes are being taken. It must be noted that the blame is not only on the judiciary and prosecutors

for this ‘easy route’ but also the way in which the law is written. 24

21Emma Bethell, "Environmental Regulation: Effective or Defective? Assessing Whether Criminal Sanctions
Provide Adequate Enforcement of the Environment,"Plymouth Law Review 2009, no. 1 (2009): 6-7
22 See chapter 2, on the law of Director liability
23 Stuart Bell, Donald McGillivray and Ole W Pedersen, Environmental Law (Oxford University Press 2013).
24 See chapter 2 on water pollution law.
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1.4 Attitudes to environmental offences

“The change in fundamental attitudes to the environment have started to have an impact upon

attitudes to environmental crime.”25 A study by Moran has shown that judges view environmental

offences as very serious with 80% of the respondents claiming that they believe there should be

more frequent prosecutions.26 In the coming chapters you will no doubt ask how judges can view

environmental offences as very serious and needing more prosecutions yet at the same time hand

down very low level fines. The table below serves to demonstrate how the Environmental

Protection Act (EPA) is viewed almost on par to Aggressive Bodily Harm (ABH) and above

offences such as burglary and theft.

Table 1: View of offences by judges. 27

White collar environmental prosecutions often come about through the negligent actions of an

employee(s) which makes a company vicariously liable by default. 28 The “defendant has a master's

degree in business, no criminal history…no obvious tie between the permit violations and the

defendant's salary” this is a common storyline which is often experienced in the courts and

25 no.23, p.277
26 no.1
27 no.1
28 See chapter 2 on vicarious criminal liability.
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usually,29 for example, “environmental managers do not fit most jurors' (or for that matter judges')

preconceived notions of how criminals walk and talk”.30 These quotes from Cassidy’s paper are

enough to demonstrate the relationship that can be forged between corporate white collar offenders

who do not fit the everyday criminal profile and those convicting them.

Moran puts forward the idea that although judges might view environmental offences as more

serious, the very fact that they are quasi-criminal in nature means they morally cannot enforce a

high sentence as its not viewed as bad.31 Croall discusses the use of a criminal justice system to deal

with corporate offenders, criticising the use of strict liability laws32 which do not require guilt and

attributes the leniency in courts down to the supposed cultural homogeneity between the courts and

offenders.33 She goes on to criticise regulatory crime against court hierarchy, scrutinising regulatory

crime as being non-indictable and almost confined to lower courts - questioning the general view on

the seriousness of certain environmental laws as honest people could make mistakes.34

Many of these moral issues derive from the traditional classification of criminal offences. Criminal

offences are often categorised as being “mala in se” and “mala prohibita”,35 actions that are

fundamentally wrong and those that are punished through statute, but do not “arouse deep

29Kevin M Cassidy, 'The Role Of Motive In White Collar Environmental Crimes' (2009) 23 Natural
Resources & Environment, p.37
30 ibid, p.38
31 no.1
32 See Chapter 2 on Water Pollution and strict liability discussion.
33Hazel Croall, 'Mistakes, Accidents, And Someone Else's Fault: The Trading Offender In Court' (1988) 15
Journal of Law and Society.
34 ibid, p.294.
35Columbia Law Review Association, Inc, The Distinction Between "Mala Prohibita" And "Mala In Se" In
Criminal Law' (1930) 30 Columbia Law Review.
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feelings”.36 Following on from this, judges therefore need to use their moral compass and establish

whether certain environmental crimes are mala in se or mala prohibita as this will inevitably

determining the course of punishment they take against the offenders. Having said this, Lord Devlin

also points out that within quasi-crime or regulatory crime, there exists “fussy regulations whose

breach it would be pedantic to call immoral”.37 This very clearly demonstrates the constant battle

that those sentencing environmental offences face.

Commonly, large corporations tend to plead guilty at the earliest convenience. To the general

layperson this may be seen as a mitigating factor, however, this needs to be looked at with caution.

Chapter 2 on strict liability water pollution offences will demonstrate the small amount of defences

available for these white collar environmental crimes. Pleading guilty means that there is usually

less information and detail regarding the circumstances of the offence as no evidence will need to

be given,38 this can be dangerous as without the full details a generous sentence might be handed

down as has been evident.39 The fact that “it becomes impossible to distinguish between the truly

guilty and the morally blameless”40 contributes to judges reluctancy to be less lenient.

Bell highlights another very important judicial struggle in keeping with the current discussion of

morality; balancing the morality of the actor against the crime. He puts polluters into three

categories: the greedy, the ignorant and the inept.41 This highlights the issue, when the criminality

36 no.7, p.185

Patrick Devlin, "Law and Morals" (Published by the Holdsworth Club of the Faculty of Law, of the
37

University of Birmingham, 1961), p. 3.


Hazel Croall, 'Business Offenders In The Criminal Justice Process' (1993) 20 Crime, Law and Social
38
Change, p.364
39 See chapter 3
40 no.33, p.294
41 Stuart Bell in Simon Ball & Stuart Bell on Environmental Law, 4th Ed, Blackstone Press, London. (1997)
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of the crime is blurred and there is ‘implied morality’,42 are we looking at the actor who produced

the pollution or the pollution itself? To quote Moran again he rightly asks if “small amount of

deliberate pollution to be viewed as more or less serious than than large amounts of inadvertent

pollution”.43 Due to the strict liability of many environmental offences including water pollution,

the removal of guilt and deliberateness means this question can be very hard to answer, and so the

morality has to be applied by the individual judges accordingly, leading to inconsistencies.44

As previously discussed, the study by Moran highlighted the positive view held by the judiciary

towards environmental offences regarding them as extremely important, calling for more

prosecutions and higher fines.45 However, as a critique to this paper by Moran and a criticism of the

judiciary it is important to mention a few points, which contribute to the opinion held of

environmental offences and the subsequent actions that might follow.

The R v Milford Haven Port Authority46 which is elaborated on in chapter 3 with regards to

sentencing gave us the first opportunity to infer the attitude of the Courts towards offences but in

particular the use of guidelines, extremely relevant given their lack of experience sentencing

environmental cases. The Court of Appeal in this case had the opportunity to follow the Sentencing

Panel’s tariffs and advice, however decided to chose a wholly irrelevant case as precedent.47 The

Court of Appeal has also on another occasion chosen to turn down the opportunity to provide any

42 no.1, p.28
43 no.1, p.28
44 For example, see Table 2 in Chapter 3 on Sentencing
45 no.1
46 R v Milford Haven Port Authority [2000] 2 Cr. Appeal. R. (S.) 423
47 R v F Howe and Son (Engineers) Ltd [1999] 2 AER 249 (CA (Crim Div)).
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sort of guidelines for environmental offences.48 This seems to be extremely inconsistent with a

study showing such advocacy from the judicial for more serious penalties and higher regard of

environmental offences within the criminal system. The lack of exposure or willingness to read

previous guidelines such as the Magistrates Court’s Sentencing Guidelines is another clear

indication of the attitude of the judiciary. A study by Environmental Resources Management (EMR)

concluded some disappointing results: a third of magistrates were aware of the guidelines, however

more disappointingly especially given the complexity of environmental cases, a tenth of the

respondents were aware but had never read them.49 This reluctancy to increase environmental

knowledge and therefore consistency and clarity within environmental sentencing is very worrying

and not in line with research by Moran as discussed above.

1.5 Conclusion

This chapter has served to demonstrate the issues that can occur when attempting to fit

environmental offences that are strict in liability, that is that no guilt has to be proven, into a system

based entirely on proving guilt. The wide range of victims in environmental law coupled with the

general view that environmental offences are not very serious has affected the ways in which the

judiciary and public see offenders and their actions. The disadvantages towards the Magistrates

court has also meant that a large number of offenders have escaped bigger consequences through

the lack of powers extended to the courts preceding over them, but also through their lack of

experience and knowledge in complex environmental cases. This chapter has understood the

interesting relationship that judges have with environmental offenders, that is the inability to attach

moral blame to their actions seemingly through a cultural homogeneity. Lastly, the chapter

48 R v Yorkshire Water Services [2001] EWCA Crim 2635


49Michael Watson, 'Environmental Offences: The Reality Of Environmental Crime' (2005) 7 Environmental
Law Review.
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discredits some claims made by Moran (2005) with regards to positive attitudes of the courts

towards environmental offenders by looking at case law to understand the actions of the judiciary

over the past years. The following chapter will take a closer look at the contentious issues in

practice that can appear due to the struggle of strict liability laws within a criminal system by

analysing water pollution laws, corporate liability, defences and case law.

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2.0 Water Pollution Laws and Corporate Liability

This ‘black-letter’ case-study on strict liability will begin to set out the law which holds

organisations liable for a specific offence - water pollution. It will assess the law in statute and

discuss the strict liability nature of water pollution and how this consequently works in practice.

The chapter also aims to assess and discuss the factors affecting specific branches of liability,

including vicarious and personal. This chapter concludes with a critical discussion on the various

defences that are available for strict liability water pollution offences while looking at case law

adjacent to this. The value of this chapter is paramount to understanding the contentious issues that

arise when fitting strict liability laws into a system built on proving guilt.

2.1 Water pollution

Before delving into the law and the subsequent liability, it is important to assess the environmental

and social harms that can be caused by water pollution, with the following chapter touching upon

the effectiveness of the law to address the issue.

‘Water pollution is one of the major environmental problems of our times’.50 Water pollution affects

wildlife, preserved lakes, commerce and could even lead to other issues such as land

contamination.51 Having said this, research by green criminologists on water pollution as a crime is

very much under researched and it must be pointed out that certain emissions that may be harmful

are legal.52 In his definition Walters states that these licensed acts are to be included under

50 Robert D. Hennigan, 'Water Pollution' (1969) 19 BioScience, Vol. 19, No. 11 pp. 976
51 ibid
52Michael J. Lynch, Paul B. Stretesky and Michael A. Long, 'State And Green Crimes Related To Water
Pollution And Ecological Disorganization: Water Pollution From Publicly Owned Treatment Works (POTW)
Facilities Across US States' (2017) 3 Palgrave Communications.
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environmental crime as ‘ecological degradation committed by states and corporations’.53 If we

deviate from the UK slightly and look to the rest of the world, the impacts on humans due to water

pollution is massive, especially in under developed countries that rely on finding water in

unconventional places.54 The societal effects nationally tend to be focused on commerce lost

through water pollution events and given that the majority of polluters are large organisations the

scope for dangerous chemical pollution is high even for the UK.55 This increases the risk locally of

groundwater infiltration of a number of toxic chemicals and may contaminate wells used for water

and impact farming businesses.56

Water pollution occurs when ‘unwanted materials enter in to water, changes the quality of water and

harmful to environment and human health’ 57 this definition is extremely important and will become

relevant, in particular for the Dovermoss case which serves to demonstrate the seriousness of water

pollution offences.

2.2 Water Resource Act 1991 and Environmental Permitting (England and
Wales) Regulations (2010) (2016)

Across the years the majority of water pollution cases until recently have been prosecuted under

section 85 (1) of the Water Resources Act (WRA) 1991 which includes the main polluting offence.

53Reece Walters, 'Toxic Atmospheres Air Pollution, Trade And The Politics Of Regulation' (2010) 18 Critical
Criminology, p.308
David Briggs, 'Environmental Pollution And The Global Burden Of Disease' (2003) 68 British Medical
54
Bulletin.
55Tord Kjellstrom and others. Air and Water Pollution: Burden and Strategies for Control. In: Jamison DT,
Breman JG, Measham AR, et al., editors. Disease Control Priorities in Developing Countries. 2nd edition.
Washington (DC): The International Bank for Reconstruction and Development / The World Bank; 2006.
Chapter 43.
56 ibid

Mehtab Haseena and others, 'Water Pollution And Human Health.' (2017) 01 Environmental Risk
57

Assessment and Remediation. p.16


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WRA 1991 - Section 85 (1) “A person contravenes this section if he causes or knowingly

permits any poisonous, noxious or polluting matter or any solid waste matter to enter any

controlled waters”58

The law stipulates water pollution offences and by way of the Interpretation Act 1978, corporations

are classified under a “person”.

The WRA 1991 section 85 has now been consolidated into the Environmental Permitting (England

and Wales) Regulations 2010 (EPR) and subsequently the updated 2016 Regulations, which under

section 38 makes it an offence to contravene section 12 of the Regulations. The wording of the

original offence under the WRA 1991 section 85 has remained the same, therefore, offences

prosecuted across the years under both laws can be discussed together.

EPR 2016 - Section 12 (1) “A person must not, except under and to the extent authorised by an

environmental permit -

(a) operate a regulated facility, or

(b) cause or knowingly permit a water discharge activity or groundwater activity”59

Under the act there are two different offences, ‘causing’ and ‘knowingly permit’, the latter’s

requirement for knowledge means that prosecutions are commonly sought after through the ease of

solely proving that a defendant ‘caused’ water pollution.60

58 Water Resource Act [1991], section 85 (1)


59 Environmental Permitting (England and Wales) Regulations [2016], section 12
60 Julie Adshead, 'Doing Justice To The Environment' (2013) 77 The Journal of Criminal Law.
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2.3 Strict liability

The historic House of Lords judgment in Alphacell Ltd v Woodward,61 a case involving a blockage

which led to a disconnected underground pipe polluting a river, paved the way for cases that

followed it by focusing on the ‘cause’ requirement of s.85 (1) of the WRA 1991. In the judgement,

it was held that it was not necessary for the prosecution to prove any sort of knowledge but just that

the defendant had caused the offence, regardless of their mental capacity. The mental knowledge

(mens rea), along with the physical act (actus reus) are the two elements needed in criminal law to

secure a successful guilty conviction.62 The House of Lords therefore provided clarity and

confirmed that the WRA 1991 s.85 and by virtue the now recent EPR 2016 s.38 are “one of those

rare breed of crimes”63 where the mens rea element is not required.

The use of a strict liability law for water pollution offences acts as a double edged sword in many

ways. Initially, the lack of proving mens rea means that successful prosecutions are much easier to

obtain, this is a significant reason for the EA’s impressive 95% prosecution success rate.64 On the

other hand, the use of strict liability, to a certain extent negates the belief held by scholars that

environmental regulations are fundamentally criminal in nature65 as strict liability is mostly for

minor offences that are not regarded as criminal.

The use of a strict liability law in relation to water pollution offences was described best by Lord

Salmon in the above case saying “unless the prosecution could discharge the often impossible onus

61 Alphacell Ltd v Woodward [1972] 2 W.L.R 1320


62 Jonathan Herring, Criminal Law (5th edn, Oxford University Press 2012).
63Neil Parpworth, 'Causing Water Pollution And The Acts Of Third Parties' [1998] Journal of Planning & Environment
Law.
64 no.14
65 no.49
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of proving that the pollution was caused intentionally or negligently, a great deal of pollution would

go unpunished and undeterred … many rivers which are now filthy would become filthier still and

many rivers which are now clean would lose their cleanliness”.66 This need to remove the mens rea

element mirrors the need for vicarious criminal liability which if not present would defeat the

relevant statutory purposes.

Strict liability crimes typically play a role in the regulation of behaviour, instead of pointing out

morally wrongful actions,67 this is a representation of the constant battle between those who see

environmental law as criminal and those that do not. An easier way to visualise this battle is through

the two classifications discussed previously, ’mala in se’ and ‘mala prohibita’, those which are in

itself bad and those which are just prohibited by statute.68 This perceivable shoehorning of

environmental offences that are not fundamentally criminal (mala prohibita) was discussed in

chapter 1.

2.4 Corporate criminal liability

The corporate structures and different levels of responsibility within companies creates huge issues

with identifying corporate criminal liability, especially in a justice framework not traditionally used

in prosecuting corporations,69 and particularly problematic considering most large breaches are by

companies. Given the lack of proving negligence or any sort of fault many corporations tend to

66 Lord Salmon in Alphacell Ltd v Woodward


67 no.3, p.215
68 no.35

69 no.21
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make full use of this situation to enact a number of defences to attract pity from the jury, with

blaming third parties a popular favourite,70 these defences will be discussed later.

The circumstances that can give rise to a successful prosecution under the ‘causing’ offence and

therefore hold corporations liable were also discussed in Alphacell with the House of Lords almost

insinuating that normal business operations can suffice. In his judgement, Lord Wilberforce made it

clear that the ‘causing’ element of the offence had a requirement for “active operation or chain of

operations”71 and that the “whole complex operation which might lead to this result was an

operation deliberately conducted by the appellants”.72 This test for an ‘active operation’ by Lord

Wilberforce to attribute liability was successfully used in cases following it, including CPC (UK)

Ltd v National Rivers Authority73 where the company was held liable for water pollution as they

were operating during the time it happened. However, despite in this case the subcontractors

committing the offence, the current owners were found to be liable, although the former could also

be prosecuted.

Corporations hiring subcontractors ought to be aware of pollution liability insurance, or perhaps

ensure pollution liability clauses are in contracts in order to claim back for any fines and costs

encountered through prosecution. The decision in CPC (UK) Ltd v National Rivers Authority was

confirmed twelve years later in Environmental Agency v Biffa Waste Services, Eurotech

Environmental Ltd74 where the court made it clear that subcontractors working on behalf of another

company may still be held liable for water pollution, although it was ultimately the original

70Paula de Prez, 'Excuses, Excuses: The Ritual Trivialisation Of Environmental Prosecutions' (2000) 12 Journal of
Environmental Law.
71 Lord Wilberforce judgement, Alphacell Ltd v Woodward [1972] A.C. 824
72 ibid
73 CPC (UK) Ltd v National Rivers Authority [1995] Env LR 131
74 Environmental Agency v Biffa Waste Services, Eurotech Environmental Ltd [2006] EWHC 1102 (Admin)
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company prosecuted in this case. These two cases go to show the level of liability that can be

attributed to companies, not only vicariously through employees which will be discussed next , but

also for other companies that do work on their behalf.

This leaves corporations very bare and open to being held liable given that this historic case (CPC)

it is simply suggested that straightforward business operations can give rise to liability. Once again,

the third party defence, which will be discussed in detail at a later point is enacted. Given that many

companies can run successful and safe operations, why should an act of another party have negative

impacts on themselves?

The ‘lack of harm’ is often cited in order to be acquitted or to reduce the sentence the courts will

impose. The judgment in R v Dovermoss Limited75 was detrimental to many defence lawyers hired

by big business, when it was found that the prosecution did not have to prove that the pollution

would cause any potential harm, meaning that finding corporations in breach and liable of the EPR

2016 s.38 and the previous WRA 1991 s.85 offences was made much easier. The judgment in

Dovermoss fell on the Oxford English dictionary definition of pollute which was “to make

physically impure, foul or filthy; to dirty, stain, taint, befoul”, meaning just the presence of the

substance was sufficient to satisfy the ‘polluting’ offence. With this decision upheld despite

concentrations of the polluting matter being considerably lower than those permitted by regulations.

An interesting aspect considered by the courts and worthy of mention again in assessing levels of

liability is the question of whether liability should be higher for those that had motive or those who

physically harm the environment more through their actions without meaning to. It has been

75 R v Dovermoss Limited [1995] Env. L.R. 258


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implied that Magistrates may use “implied morality”76 to hint to the seriousness of a crime, for

example, where pollution is done for profit it tends to be viewed more seriously compared to plain

negligence.77 The courts therefore look towards the mens rea of the polluter as worse and not how

morally bad the act they commit is. It could be argued that the whole point of the statutory purpose

of this law is ultimately to prevent pollution, therefore this should take precedence irrespective of

mens rea, considering it is a strict liability law under the ‘causing’ offence.

Having said this, the Sentencing Council Environmental Offences Guidelines of 201478 has

attempted to aid the courts in this seemingly hard onus, by separating both culpability and harm into

various levels and categories to be able to achieve a fair sentence. There are still issues with these

guidelines that can cause sentencing to go back to its old ways, this is discussed in depth at a later

point.

2.4.1 Vicarious criminal liability

A fundamental principle of criminal law is that individuals are responsible for their own actions and

cannot be held liable for something someone else had done,79 this is superseded in the face of

vicarious liability. This notion of liability for another persons actions within a company will now be

addressed.

The Law Commission have previously commented on the unfairness and disproportionality that the

doctrine of vicarious liability can have in certain circumstances by imposing liability on certain

76 no.1, p.32
77 no.1
78 Sentencing Council, 'Environmental Offences Definitive Guideline - Sentencing Council' (2014).
79 no.62, p.772
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organisations that did not know that those that caused the offence would act in that way.80 However,

the courts have to apply vicarious liability if it is apparent that the statutory purposes are defeated

by not being able to hold a company criminally liable for its employees actions,81 Lord Salmon’s

comments above serve as one of the reasons for this.

Before discussing senior members of staff with regards to criminal personal liability in the next

section, it is important to mention Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd.82 The

famous House of Lords judgement in 1915 set in stone the liability imposed on corporations

vicariously through the actions of directors, something which was previously only limited to

employees only. The decision in this case gave power to the ‘alter ego’ theory, which established

that directors and stakeholders actions were 'alter egos’ of the corporation as a whole83, therefore on

committing a tort, the whole corporation does so to.

The decision in Tesco Supermarkets Ltd v Nattrass84 stated that a company could only be held liable

if the employee that committed the offence was of a high enough rank to act as the ‘controlling

mind’ of the company in question. However, as stated above for water pollution offences this

defeated the statutory purposes of the law and so no longer applies here, saying this, to prove the

‘knowingly permitting’ offence it must still prove knowledge and by an employee with the directing

mind of the company.85 In National Rivers Authority v Alfred McAlpine Homes East Ltd,86 where a

80 LCCP 195, para 1.89


81 no.23
82 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705
83David K. Millon, 'Piercing The Corporate Veil, Financial Responsibility, And The Limits Of Limited Liability' [2006]
SSRN Electronic Journal.
84 Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1
85Susan Tysoe, 'Corporate Liability For Water Pollution Offences In England And Wales' (1993) 19 Commonwealth
Law Bulletin.
86 National Rivers Authority v McAlpine Homes East Ltd [1994] 4 All ER 286
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river had become polluted from cement due to the actions of a site agent and manager it was

established that prosecution did not have to prove those with the controlling mind of the company

such as directors were involved in the incident. It is sufficient that employees who were working

within the terms of their contract caused the pollution.

The simplicity of working within employment contracts as normal mirrors somewhat the decision in

Alphacell that just the day to day business operation is enough to cause liability. This makes sense

considering the Divisional Court relied on Alphacell v Woodward rather than Tesco v Nattrass. This

approach was confirmed again in Shanks & McEwan (Teeside) Ltd v Environmental Agency87 where

Alphacell was relied upon to successfully prosecute under the ‘knowingly permit’ offence. This case

was particularly groundbreaking as it not only reaffirmed the vicarious liability of employees but

the courts construed the ‘knowingly permitting’ offence to be very wide and general in its meaning,

holding companies even more liable for employees’ actions. Therefore, a site manager’s actions of

‘knowingly permitting’ pollution were proven by establishing he had general knowledge instead of

actual knowledge of any breaches and subsequently were attributed to the company.

2.4.2 Criminal personal liability

Regulation 41 (1) of the EPR 2016 replaced the previous section 217 of the WRA 1991 which

imposed criminal personal liability to senior members of staff within the corporate body.

EPR 2016 - Section 41 (1) “If an offence committed under these Regulations by a body

corporate is proved — (a)to have been committed with the consent or connivance of an officer, or

(b)to be attributable to any neglect on the part of an officer,

87 Shanks & McEwan (Teeside) Ltd v Environmental Agency [1998] 2 WLR 452
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the officer as well as the body corporate is guilty of the offence and liable to

be proceeded against and punished accordingly.88

In paragraph (1), “officer”, in relation to a body corporate, means a director, member of the

committee of management, chief executive, manager, secretary or other similar officer of the body,

or a person purporting to act in any such capacity.89

The simplicity of proving that a company had ‘caused’ pollution, in comparison to attempting to

prove ‘consent’ or ‘neglect’ by a member of staff means that most prosecution have been against

companies as a whole as opposed to individual senior members of staff,90 as the latter requires to

prove the mens rea of individual members. Nonetheless, there are still major issues regarding the

clarification of the word “manager”, “secretary” and the recent introduction of “member of the

committee of management” and “chief executive”, which were previously not present in section 217

of the WRA 1991.

This very issue was the centre of attention in Woodhouse v Walsall Metropolitan Borough Council91

where an appeal to the High Court saw them determining whether the defendant, a manager, was

able to be held sufficiently liable. It was established that it was not only the position of authority but

how deep that went, that is to say, the ‘manager’ had to have ‘the power and responsibility to decide

88 Environmental Permitting (England and Wales) Regulations 2016, section 41 (1)


89 Environmental Permitting (England and Wales) Regulations 2016, section 41 (3)
90 no.85, p.2000
91 Woodhouse v Walsall Metropolitan Borough Council [1994] Env LR 30
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corporate policy and strategy’.92 The Courts ultimately rested on the judgement from the 1992 case

of R v Boal (Francis Steven).93

The difficulty already mentioned in establishing those members of staff that have, as the Courts

stated ‘the power and responsibility to decide corporate policy and strategy’,94 is exacerbated by the

need to prove mens rea of the individuals. With regards to having to prove mens rea, the courts and

prosecution may feel that higher ranking members of staff ‘have’ to have known as they ultimately

are at the top running the business. However, it must be remembered that due to the complexity of

corporate structures it can be difficult identifying responsibility,95 furthermore, senior members of

staff might have been shielded from the true facts occurring on the ground.

The increased imprisonment and disqualifications of company directors by the Magistrates and

other judges was strongly urged in the Environmental Justice Report 200496 under the Company

Directors Disqualification Act 1989.

With regards to directors, who also come under section 41 (1) EPR and therefore are susceptible to

prosecution, the question could be turned around as to whether they ‘should’ have known and could

this be attributed to ‘neglect’ under section 41 (1) EPR? It can be argued that lower level

management might have covered up certain activities that led to a bigger event, however, is it the

onus of a director to be actively involved and aware, and therefore liable?

92 Judgement in ibid. (Woodhouse)


93 R v Boal (Francis Steven) [1992] QB 591
94 Judgement in Woodhouse v Walsall Metropolitan Borough Council [1994] Env LR 30
95 no.21, p.3
96 Environmental Justice Project, Environmental Justice Report [2004]
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Wotherspoon v HM Advocate97 discussed this very matter with regards to Health and Safety, despite

this, it concerned the same act as section 41 (1) EPR. The decision in the case now presents an

easier task to prosecution who attempt to hold company directors liable with the mens rea element

easier to satisfy under the ‘neglect’ offence. The judgement in Wotherspoon concluded that director

liability will arise under ‘neglect’ where it can be proven that the officer had failed to take steps to

prevent an offence, if the steps fall within the scope of the functions of the particular office they

hold. This differentiates itself from the other two offences under section 41 (1), ‘consent’ and

‘connivance’, as there is no need for prior knowledge. The ‘steps to prevent an offence’ might be for

example, to ensure appropriate licences are in place if this falls under the job description of a certain

director and failure to do so might amount to neglect of his/her duties, therefore knowledge of

illegal acts are not needed.

“Corporate convictions do not normally involve the same level of stigma as do those arching to

individuals, nor the same practical implications”.98

Given the stigmas attached to individual imprisonment or director disqualification compared to

collective corporate fines, there is an argument to be had with regards to more investigation on the

‘knowingly permitting’ offences rather than the simplicity of proving the strict liability ‘causing’

offence, to provide more of a deterrent. Corporations naturally want to maximise profits, therefore

anything that would inhibit this such as large corporate fines, would generally be unwelcome and it

would be concluded that it would deter unwanted corporate behaviour.99 This is ultimately not

occurring, low level fines and stigmas attached to environmental offence do not discourage negative

97 Wotherspoon v HM Advocate [1978] JC 74


98 Andrew Simester and Robert Sullivan, Simester And Sullivan's Criminal Law (Hart Pub 2010), p.190
99John T. Byam, 'The Economic Inefficiency Of Corporate Criminal Liability' (1982) 73 The Journal of Criminal Law
and Criminology (1973)
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corporate activity and to a certain degree the use of administrative fines might even begin to

decriminalise the offences, this will be discussed in depth in the coming chapters.

2.5 Corporate liability defences

The statutory defences for water pollution offences are found in section 40 of the EPR 2016, these

mainly are when the discharge is from abandoned mines,100 in a state of emergency,101 and acts of

God102 since the revolutionary decision in Alphacell the majority of defences are rarely upheld. The

defence in Impress (Worcester) Ltd v Rees103 successfully argued that acts of a third party; vandals

that had come on site and opened a valve, could not be attributable to them and therefore they were

not liable. This follows from the basic principle mentioned earlier, that we are responsible for our

own actions and that when someone ‘breaks the chain’ and there is a ‘novus actus interveniens’104

we cannot be held liable, even where we produce a situation that might give rise to pollution.105

However, a novel approach to legal causation has been taken after the Alphacell decision and this

was first confirmed in Empress Car Company (Abertillery) Ltd v National Rivers Authority106 a

carbon copy of the previous Impress case involving an act of vandalism, however in this case the

decision was that the company would be held liable and the defence of a novus actus interveniens

was dismissed. Lord Hoffmann dismissed the traditional view of legal causation and created a new

100 EPR 2016, section 40 (1)


101 EPR 2016, section 40 (2)
102Schiemann L.J. in Empress Car Company (Abertillery) Ltd v National Rivers Authority [1997] Env. L.R. 227 “It
appears to be common ground that if someone fills a tank with pollutant and the pollutant escapes into a river because
the tank is split in two by lightning, he will be absolved of having caused the escape”
103 Impress (Worcester) Ltd v Rees [1971] 2 All ER 357
104 R v Kennedy (No 2) [2007] UKHL 38
105 Alphacell Ltd v Woodward [1972] 2 W.L.R 1320
106 Empress Car Company (Abertillery) Ltd v National Rivers Authority [1998] Env LR 396
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test along with the ‘active operation’ test in Alphacell, when he went down a path whereby the

question would be whether the intervening act was ‘ordinary and normal’ or ‘extraordinary’ the

latter would be a valid defence for acquittal. However this test set out by Lord Hoffmann which

supposedly makes it easier for Magistrates in coming to a decision has not been without its

problems, namely what constitutes ‘ordinary and normal’ and what is ‘extraordinary’. For example,

despite attacks on a country being rare and ‘extraordinary’ it could be argued that large corporations

plan for them, whereas an act of vandalism in a remote area might be considered ‘abnormal’.107

This is just one branch of a wider debate: wanting to make environmental law breaches increasingly

criminal, however deviate from fundamental traditional legal causation. There is also call for a type

of fault-based liability or due diligence defences108 where there are strict liability offences involved.

This is in order to re-criminalise and make environmental offences more serious, however once

again that goes back to the debate of defeating the statutory purposes of certain offences.

The controversy of strict approaches being taken to liability with regards to Lord Hoffmann’s test

for legal causation, was seen just a month after the Empress decision in Environmental Agency v

Brock plc [1998].109 The case involved a discharge due to a fracture of a pipe that had a latent

defect, the Courts decided when quoting Lord Hoffmann in the case that “there is nothing

extraordinary or abnormal about leaky pipes or lagoons as such; these things happen, even if the

particular defendant could not reasonably have foreseen that it would happen to him”.110 The quote

from the judgement above highlights the harshness and strictness of criminal strict liability of

environmental offences in one sentence, but also the narrow approach to ‘extraordinary’ events.

This narrow approach is confirmed years later in 2003, with regards to ‘breaking the chain’ where it

107 no.23
108 no.14
109 Environmental Agency v Brock plc [1998] Env LR 607
110 Judgement in ibid.
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was established a tyre blowout on the motorway was construed to be just a normal ordinary event

that can happen at any point.111

2.6 Conclusion

As it has become apparent from this chapter, strict liability offences ultimately impose

responsibility on those who are not blameworthy due to the lack of the mens rea requirement and

the new test of legal causation. As more and more corporations begin to be fined and held

accountable for actions they have not done, the stigma attached to these ‘quasi-crimes’ will be

reduced considerably and the new era of decriminalisation of environmental offences has aided this

greatly, this notion is discussed in the last chapter in detail. The following chapter will now discuss

the issue around the sentencing of environmental offences and water pollution breaches.

111 Express Ltd (trading as Express Dairies Distribution) v Environment Agency [2003] EWHC 448
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3.0 Sentencing

3.1 Introduction

The following chapter will discuss the patterns and influences on sentencing of environmental

offences based on the previous chapters discussion on the law and touch upon the redress for water

pollution offences too, primarily from 2005-2015. In particular, it will analyse the 2014 Sentencing

Guidelines for Environmental Offences introduced by the Sentencing Council produced to aid in

consistency and transparency of sentencing. This chapter will also identify other issues that have

been caused by their introduction that might impede its main objective, whilst looking at relevant

case law. This chapter finally discuss the dual role of the EA as a prosecutor and educator, and

analyses its choices to prosecute certain cases whilst criticising their contradictive EPP. The

importance of this chapter is to not only assess why low level sentencing is occurring which in turn

influences a number of factors such as liability of organisation and the likelihood of reoffending,

but also to understand the general issues that plague sentencing. This chapter also concludes that

perhaps the EA are no longer fit to be the main prosecutor of environmental offences in the UK for

a number of reasons including their interesting decisions of which cases to prosecute. It also

provides recommendations for the EA to take riskier and more serious cases to court and

recommendations that can be used to increase the level of sentencing currently being seen in courts.

The 1991 Court of Appeal decision in R v Milford Haven Port Authority112 to replace a £4 million

fine for an offence under the WRA 1991 s.85 for a £750,000 fine sparked huge concern in the way

that environmental offences were being sentenced, however, this was not a new issue. The Milford

Haven Port Authority case is analogous to the attitudes of the Court towards environmental

offences, the need of sentencing guidelines and the judiciaries negligence in sentencing as discussed

112 R v Milford Haven Port Authority [2000] 2 Cr. Appeal. R. (S.) 423
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in Chapter 1. The judges in this case chose not to use it as an opportunity to prescribe new

guidelines which would help achieve a higher level of clarity, but instead decided to refer to the

2008 Magistrates’ Court Sentencing Guidelines.113 These guidelines were not wholly appropriate for

a number of reasons, inter alia, they were largely based on Health & Safety offences which are not

strict liability unlike environmental offences as described in the previous chapter. This demonstrates

that it is not always the tools judges might have with regards to sentencing guidelines, or the lack

thereof, but the ways in which they are utilised and the use of their own discretion.

The sentencing of environmental offences has been laced with controversy and disparities for a

number of years now, among other reasons, due to low level fines and the hugely varying criminal

consequences across similar cases.114 After a number of calls on the Sentencing Council to attempt

to clear up confusion in this matter, the 2014 Sentencing Guidelines for Environmental Offences

(2014 Guidelines) was born, replacing the previous 2008 Magistrates’ Court Sentencing Guidelines.

This chapter will begin to critically discuss along with Chapter 1 on the ‘Suitability of the Courts’

the previous issues that have plagued sentencing of environmental offences and the subsequent

consequences, the assistance received by the 2014 Guidelines and the new cracks that are begin to

show.

3.2 Sentencing of organisations

Sentencing of organisations for environmental offences has seen a number of fluctuations across

the years. A ten year span (2005-2015) shows the number of companies sentenced falling from 110

Neil Parpworth, 'Environmental Offences: The Need For Sentencing Guidelines In The Crown Court
113
(United Kingdom)' [2008] Journal of Planning & Environment Law.

Walters, Reece (2009). Crime is in the air - air pollution and regulation in the UK. CCJS, Kings College,
114

London.
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in 2005 to 90 in 2015.115 The majority of these organisations (67%)116 were sentenced under the

EPR 2010 sections 12 & 38. Contrary to the number of organisations falling, the fines in monetary

terms has done the opposite and risen since the 2014 Guidelines as seen below in Figure 1 reaching

a median high of £28,000 a year after their introduction.117

Figure 1 - Median fine amount for environmental offences form 2005-2015.118

The issuing of fines has been the most favoured type of punishment against offenders of

environmental law, with custodial sentences being rare; this is due to the difficult onus of proving

mens rea as discussed in previous chapters. Recent figures show that 65% of offences are punished

by fines, this is a reduction of 13% since 2001.119 The use of other avenues such as community

orders by enforcement agencies such as the EA have seen a rise across the years too,120 perhaps a

Neil Parpworth, 'The Impact Of The Environmental Offences Sentencing Guideline: An Early
115
Assessment' (2017) 11 Journal of Planning & Environment Law.
116 ibid
117'Assessing The Impact Of The Sentencing Council’s Environmental Offences Definitive Guideline' (2016)
<https://www.sentencingcouncil.org.uk/wp-content/uploads/Environmental-assessment.pdf> accessed 11
June 2018.
118 ibid, p.6
Neil Parpworth, 'Sentencing For Environmental Offences: A New Dawn?' (2013) 9 Journal of Planning &
119
Environment Law.
120 ibid
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hint that the laborious court procedures or the lenient judges encountered are not worth the

outcome, this will be discussed shortly.

As mentioned above, the courts have not favoured custodial sentences as a mainstream punishment

to environmental offences. The 2000 R v O’Brien and Enkel121 case saw a prison sentence being

overturned in the Court of Appeal for the illegal dumping of tyres, more importantly, it provided

clarification as to when a custodial sentence would be appropriate. Although not directly related to

water pollution, it provides a general opinion of judges with regards to the matter. Judge Goldring

stated that it would have to be a case where the public was exposed to hazardous substances or in a

public place,122 this stance by Goldring shows blatant disregard towards the long term

environmental impacts and favours the direct visible impacts. The complexity of understanding

long term environmental impacts when sentencing, calls for the need of expert advice during trial,

this is discussed in due course.

This case reinforces the idea that many judges do not view environmental offences as serious

enough to deserve serious punishment, and that perhaps judges are not well acquainted with the

actual harms certain activities have on the environment. This goes back to the view evaluated in

detail in Chapter 1.

121 R v O'Brien and Enkel [2000] 2 Cr. App. R. (S.) 358


122 Judgment in ibid (R v O’Brien and Enkel)
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3.3 2014 Sentencing Guidelines for Environmental Offences

A true testament to the initial success of the guidelines has been that of the 2017 R v Thames Water

Utilities Ltd123 which saw the highest ever fine administered by an English Court, £20,361,140.06

and subsequently attracted a large amount of media attention.

The instant success of the 2014 Guidelines can be quantified in a number of ways, for example, the

apparent increasing amount of fines as seen above or the way in which aggravating factors have

been viewed since their introduction.124 In the recent 2015 R v Thames Water Utilities Ltd,125 the

defendant’s 162 previous offences across the years were regarded as extremely important. However,

just over 10 years ago prior to the 2014 Guidelines in the 2003 R v Anglian Water Services Ltd,126

the company’s 64 previous environmental offences were not thought to be very significant. The

difference in attitudes of aggravating factor pre and post the 2014 guidelines is apparent, along with

the difference in fines between the two, £250,000 and £60,000 on appeal, respectively. The 2015

Thames Water Utilities Ltd case is particularly insightful as it dealt with a big issue that became

clear from the 2014 Guidelines: sentencing for very large organisations.

The aim of the sentencing guidelines was very clear - to produce a greater level of uniformity and

higher level of fines across those cases being sentenced.127 Having said this, they have not been

greeted without critique, there has been a host of literature and relevant case law highlighting key

issues with the new guidelines. The guidelines attempt to walk judges through a step by step

123 Environment Agency v Thames Water Utilities Ltd unreported 22 March 2017 (Crown Ct (Aylesbury))
124 no.115
125 R v Thames Water Utilities Ltd [2015] EWCA Crim 960
126 R v Anglian Water Services Ltd [2003] EWCA Crim 2243
127 Anne
Brosnan, 'The New Environmental Offences Sentencing Guideline — A Summary With
Comments' (2014) 16 Environmental Law Review.
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process of sentencing environmental offences, including: assessing level of culpability and

seriousness of the offence; and this process is divided into organisations and individuals.128 At

prima facie it seems that any of the subjectivity, errors or disparities that once plagued sentencing

environmental offences are no longer an issue.

3.3.1 Sentencing very large organisations

Environmental offences, in particular when looking at case law for water pollution offences shows

that a large number of the offenders are large profit organisations with big pockets. What issues

does this have in practice? The guidelines are split into four types of organisations (turnover shown

in brackets); large (£50m and over); medium (between £10m and £50m); small (between £2m and

£10m); and micro (no more than £2m).129 There is no category for very large organisations, this is

where the guidelines have been criticised, the table below, table 2, shows a sample of the major

‘very large organisations’ cases over the past three years that have been a victim of this issue. This

issue is multiplied as it must be noted that the biggest culprits are those companies which are

extremely large organisations and this is mirrored in case law. If they are not sentenced correctly

then reoffending is likely, as was seen in the 2017 Thames Water Utilities Ltd case. This issue is

especially important given that “large companies may be protected by the greater difficulties of

investigation and their relative invisibility”,130 therefore when the opportunity arises it must be dealt

with appropriately.

128 no.78
129 ibid
130 no.38 p.364
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Year Organisation Turnover (£) Fine issued (£) Fine as a
percentage of
turnover (%)
2018 Severn Trent Water GB£1,694,100,000 GB£350,000 0.02

2017 Thames Water Utilities GB£2,000,000,000 GB£20,361,140.06 1.02

2017 Tesco GB£55,900,000,000 GB£8,000,000 0.01

2017 United Utilities Water Ltd GB£1,736,000,000 GB£666,000 0.04

2016 Yorkshire Water Services GB£975,800,000 GB£600,000 0.06


Ltd
2016 Southern Water Utilities GB£809,700,000 GB£2,000,000 0.25

2015 Thames Water Utilities GB£2,000,000,000 GB£250,000 0.01

Table 2 - Sample of “very large organisation” cases prosecuted

I compiled Table 2 using the EA’s official database and is purely cases of water pollution offence,

this eliminated any bias or skewed data as all the cases are of the same nature. The use of similar

cases means they can be used to be compared against each other without any problems. The use of

turnover as a measure was based mainly on the use of this ‘unit’ or any equivalent in the 2014

official Sentencing Guidelines to determine the financial situation of a company to set a starting

point for a fine.131 The turnover is a good measure with regards to being able to see how much a

company makes in comparison to what it has to give out.

The table above demonstrates the big issue not only for sentencing ‘very large organisations’ but

also a regularly occurring problem for many years: the fact that fines are not reflective of a

company’s turnover. Therefore the fine is a very small cost compared to their turnover and severity

of the offence,132 making offending just a running cost of owning a business.

131 no.78, p.7


132no.2, p.3. The Environmental Audit Committee discusses on its “Conclusions and Recommendations”
page a number of issues relevant to fines/financial corporate circumstances. This includes inadequate
punishment, lack of deterrent and the profits gained from crimes not being taken into account in the sentence.
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This notion of ensuring the sentencing is proportionate to financial situations of organisations is

voiced by judges regularly when delivering judgments, however, rarely put into action. The last

case on the table, R v Thames Water Utilities, was a clear victim of not only both the issues with the

new guidelines just a year after their introduction in 2015, but also the negligence and attitudes of

judges.

Judge Mitting was very clear in stating that “it is of particular importance in the case of such very

large commercial organisations to take into account the financial circumstances of the offender …

ensure that the penalty imposed is not only proportionate and just, but will bring home to the

management and shareholders the need to protect the environment”,133 however, failed to do so by

imposing a fine which was not even 1% of the company’s annual turnover. This failure is not only

attributable to the sitting judge but also the Sentencing Council when producing the guidelines. The

missing guidelines for ‘very large organisations’ has meant that judges have discretion to ‘multiply’

the starting fine by the amount they feel correct. This discretion and freedom given to judges when

fining companies with a turnover above £50m134 has lead to the discrepancies that the guidelines

once attempted to fix. This is not an isolated case, the same issue has appeared in a number of South

West Water cases, where the organisation has a turnover of over £500m.135 Are we returning to an

era of inadequate fines, given the new lifeline recently received in the shape of 2014 Sentencing

Guidelines?

Before discussing the role of the EA, it is important to discuss another matter that has been missing

in previous cases, previous guidelines and even in the most recent of guidelines: the use of expert

133 Mitting J in R v Thames Water Utilities Ltd [2015] EWCA Crim 960, Paragraph 35.
134 Kevin Bridges and Chris Hopkins, 'Appropriate Fines' (2015) 33 The Safety & Health Practitioner.
135 ibid
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witnesses and advice in cases of environmental protection and offences. Judges have legal

background and despite the amount of environmental training provided to them this often falls short

in detail. A study carried out by Environmental Resource and Management has highlighted the

significance of experts to provide information on the harms caused or potential harms caused by

environmental offenders that might not be evident at the time of trial.136 The use of expert evidence

has been standard practice in almost all cases in the Land and Environment Court (LEC) in New

South Wales. It is understood that the environment is a complex and difficult issue which requires a

socio-legal viewpoint which can sometimes lack in the Courts, the use of experts in the LEC in

Australia allows judges to sentence fairly and more accurately.137 A study in produced in the

Australian LEC highlights the importance of an environmental court and how it can be extremely

beneficial given the changing nature of the environment - “there is a lot of flexibility in this court

that you don't get in other courts… a lot of time is spent understanding the impact on the

environment”.138 The study sums up the focus of the court to be not only the harms to the

environment but also the use of scientific evidence to assess a number of different factors, these

new judicial techniques which are afforded to a separate environmental court are what put them

apart from traditional criminal courts.139 This vital role is clearly an important factor in sentencing

cases, perhaps Judge Goldring would have sentenced differently in the 2000 R v O’Brien and Enkel

had this vital player been present.

Neil Parpworth, 'Environmental Offences: Trends In Sentencing In England And Wales' (2004) 12
136
Environmental Liability, Law Practice and Policy.
137Rachel Pepper, 'Expert Evidence In The Land And Environment Court' (Lec.justice.nsw.gov.au, 2013)
<http://www.lec.justice.nsw.gov.au/Documents
expert%20evidence%20in%20the%20land%20and%20environment%20court%20v2.pdf> accessed 16 June
2018.
Reece Walters and Diane Solomon Westerhuis, ‘Green Crime And The Role Of Environmental
138
Courts’ (2013) 59 Crime, Law and Social Change, p. 285
139 ibid
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Some of those who might criticise my use of the Australian courts as an example will no doubt cite

Australias overly stringent and protective environmental laws as being the reasons for a specific

environmental court.140 141 However, environmental courts are actively used in many countries

including Sweden and India for higher environmental protection and judicial rigour. 142 143 The

increasing use of specific environmental courts to provide better environmental protection is also

seen by many including the United Nations to be the answer to certain Sustainable Development

Goals with regards to access to justice - not only having benefitting the country of the Court, but

also globally.144 Once again, those who might criticise me for the recommendation of an

environmental court and point towards the First-tier Tribunal (General Regulatory Chamber)

formed by the Tribunals, Courts and Enforcement Act 2007 that hears appeals of decisions by the

EA or Natural England should be reminded that this tribunal is not made up by specialist

environmental judges or equivalent therefore the recommendation stands.

This segways into the issue of ‘presentation of a case’ which has often been a factor that judges

consider to have affected sentencing. “It has been put to us by some of those involved in the daily

work of the courts that standards of presentation in environmental cases need to improve.”145

Adshead and Andrew write about the issues encountered by the Magistrates due to unsuitable

Department of Agriculture 2015, Australia’s seafood trade, Department of Agriculture, Canberra,


140

www.agriculture.gov.au [accessed on 17/07/18]


141Bradfield PJ, Schultz CE and Stone MJ. ( 1996) 'Regulatory Approaches to Environmental Management’,
p.47 in David R Mulligan, Environmental Management In The Australian Minerals And Energy
Industries (UNSW Press 1996)
142 Ulf Bjällås,(2010) ‘Experiences of Sweden’s Environmental Courts’, 3 J Ct Innovation 177
143Gitanjali Nain Gill, 'The National Green Tribunal Of India: A Sustainable Future Through The Principles
Of International Environmental Law' (2014) 16 Environmental Law Review.

Pring, George, and Catherine Pring. 2016. Environmental Courts and Tribunals: A Guide for Policy
144

Makers. Nairobi: UNEP.


145Sentencing Advisory Panel, Environmental Offences: The Panel’s Advice to the Court of Appeal, (1999),
paragraph 4. <http://www.banksr.co.uk/images/Guidelines/Advisory%20Panel%20Reports/
Environmental%20Offences.pdf> [Accessed on 18/07/18]
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presentation of cases. The complexities involved in environmental cases can have a significant

impact in terms of the Magistrates providing a sustainable penalty which therefore affects the way

they sentence.146

A study by Andrew has flagged up this exact issue, the results showed that despite prosecutors

presenting cases well in general, many ignored the recommendations in R v Friskies Pet Care (UK)

Ltd147 to plan out the mitigating and aggravating factors.148 This assists the courts in sentencing

more accurately and clearly, when the correct guidelines were not available (pre-2014) or when the

guidelines show gaps (post-2014).

Most environmental offences are heard in the Magistrates court, the most heinous cases or those

outside of the Magistrates remit are referred to the Crown court.149 The recommendations in R v

Friskies Pet Care UK Ltd are particularly relevant due to the functions they perform in terms of the

court that most environmental offences are heard. These two important functions which have a large

consequence on sentencing are (a) they aided in the clarification of penalties that were imposed on

cases, which would assist the higher Courts should there be an appeal and (b) they also helped the

lower Magistrates courts in deciding whether to refer the case to Crown court.150 As already

mentioned, latter was extremely important as up until recently the Magistrates court could only fine

up to £20,000,151 therefore referring to the Crown court signified the potential of an unlimited fine.

However, as from 2015 the Magistrates courts have had their limits removed on the level of fines

146 no.14
147 R v Friskies Pet Care (UK) Ltd [2000] EWCA Crim 95
148 no.14

Martha Grekos, Environmental Fines – All Small Change?‟ (2004) Journal of Planning and
149

Environmental Law
150 Susan Wolf and Neil Stanley, Wolf And Stanley On Environmental Law (Routledge 2014).
151 no.14, p.5
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they can issue, meaning larger fines can be expected from the lower courts.152 Having said this, the

Magistrates courts and the Crown courts are not completely equal in the powers when it comes to

sentencing environmental offenders.

3.4 Environmental Agency (EA) - prosecutor and educator?

In the UK, the EA is the main actor responsible for enforcing a large number of environmental laws

and offences carried out under the current legislation where it also has the powers to prosecute

organisations and individuals where it deems necessary.153 The Agency carries out its prosecutions

under its EA EPP,154 this document sets out the EA’s position on enforcement of environmental laws

and more importantly its discretion to prosecute environmental cases.

The EA has a large amount of discretion when deciding which cases it prosecutes.155 Despite it

being much easier to suspend or revoke licenses it mostly decides not to, favouring a court case

instead. In 2001 since the EA began, there had been only 6 licenses revoked,156 if this were to

continue year on year it would mean 102 licenses revoked in 2017, a significantly low number

compared to prosecutions. The feasibility of alternative choices of enforcement which are featured

prominently in the Macrory Review157 for punishing environmental offenders is discussed in the

final chapter.

152 Legal Aid, Sentencing and Punishment of Offenders Act [2012], section 85.
153 David Stott, 'Environmental Enforcement In The UK' (2009) 11 Journal of Environmental Monitoring.
'Materials. The Environment Agency Enforcement And Prosecution Policy' (2000) 12 Journal of
154
Environmental Law.
155 no.49
156 Anthony Ogus and Carolyn Abbot, 'Sanctions For Pollution: Do We Have The Right Regime?' (2002) 14
Journal of Environmental Law.
157 Richard B Macrory, 'Regulatory Justice: Making Sanctions Effective' (2006).
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The EA has been widely criticised for ‘cherry-picking’ which cases to prosecute, going against its

EPP and gaining a reputation for only taking ‘easy wins’ to court.158 This in turn has a negative

effect on (a) the environment - a large number of cases that might not have 100% hard evidence but

still pass the evidential test discussed below go untried in court and unpunished and (b) sentencing

experience - the higher number of cases taken to court, the more experience judges gain. Perhaps

the EA is no longer qualified to be the main prosecutor or needs a restructuring of its organisation,

as its peculiar choice of cases to try is having a negative impact as already stated on judicial

experience and therefore sentencing and liability.

Ogus and Abbot159 highlight a number of very important points which will be critically analysed

below, firstly, the EA’s EPP clearly states that all offences characterised as ‘major’ will be

prosecuted, however less than 25% of these are taken to court. Secondly, the evidential test carried

out by the EA when deciding which cases to prosecute is conducted too rigidly in order to achieve a

higher success rate.

According to the EA’s EPP a prosecution will take place for “incidents or breaches which have a

significant consequences for the environment or which have the potential for such consequences”160

stressing that it must also be a matter of public interest in order to initiate a prosecution.161 A

document produced by the EA in July 2015 on pollution incidents also states that despite there

being other factors they will “prosecute serious or persistent offenders”.162 Taking into account the

158 no.49, p. 8
159 no.156,p. 286
160 no.153, p.124, Principle 28
161 no.153, p.123, Principle 22
162Environmental Agency, Pollution incidents - 2014 evidence summary (2015), p.12, https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651710/
Pollution_incidents_2014_evidence_summary_LIT_10127.pdf> accessed on 03/08/2018
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above and using the EA’s Public Register on the Official Government website,163 a quick search will

garner results that are completely contrary to that above and lend to the view that the EA is taking to

court cases which are arguably easier to win. The cases being tried are also lacking in serious

environment harm or committed by first time offenders, all going against their own EPP. A search of

water pollution offenders from 2012-2015 shows a considerable amount of prosecutions that fall

short of the EPP, below is a sample of these prosecutions.

Year Organisation Environmental impact category Fine issues

2015 Thames Water Utilities None GB£220,000


2014 United Utilities Water None GB£400,000
2014 A+A Rodenhurst Limited Minor GB£43,000
2013 Yorkshire Water Services Ltd Minor GB£8,000
2013 PD Hook (Hatcheries) Ltd Minor GB£20,000
2013 Orchid Investments Ltd Significant GB£16,000
2012 South West Water Major GB£10,000

Table 3 - A sample of several wrongly prosecuted cases carried out by the EA

Despite the EA clearly stating in a number of its policies and documents that only those serious

cases which harm the environment and are of public interest will be prosecuted, we see above that

there are five cases with a category of none or minor. The two largest fines awarded to Thames

Water Utilities and United Utilities Water are ironically the only two that have caused no

environmental harm. Despite there being no harm whatsoever, the EA perhaps took advantage of

the fact that as already discussed, the Courts were holding previous offences extremely important in

more recent years compared to pre the 2014 guidelines.164 This potentially guaranteed a clear

163Public Register - Environmental Agency <environment.data.gov.uk/public-register> [Accessed on:


07/08/2018]
164Thames Water 2015 case compared to Anglian Water Services 2003 case, previous offences taken into
account more recently.
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conviction considering that the two companies currently in question had 91165 (Thames Water

Utilities) and 134166 (United Utilities Water) offences of some sort with the EA. On the other hand

the bottom two cases which were ‘significant’ and ‘major’ received some of the smallest fines,

which does not correlate with the harm causes - perhaps another sign of expert evidence needed at

trial to clarify environmental harm.

The EA’s 95% success rate167 at trial has been linked to the rigidness of how they apply the

evidential test of the Crown Prosecution Service, the ‘realistic prospect of conviction’168 , in order to

be 100% sure they will have a guilty verdict. This test is set out in Principle 21 of the EPP under

‘Sufficiency of Evidence’.169 A combination of taking larger companies with a history of offences,

companies who have never committed offences before, and those with minor environmental harm is

potentially a clear sign of some truth in the above argument.

As previously mentioned with regards to environmental experts and the occasional struggle of the

courts to deal with the complexities of environmental cases, it is not absurd to assume that perhaps

the EA is taking cases with little environmental harm and therefore less complexity to prosecution

increase their chances of a guilty verdict. There is bound to be clearer evidence in less complex

cases of minor or no environmental harm. However, this does no good to the judicial system as

taking ‘easy wins’ to court does not benefit the judges nor the environment, it is those heinous

serious complex cases that the EA should risk and take to court as set out in their EPP.

165 no.162
166 no.162
167 no.14
168The realistic prospect of conviction test is part of the Evidential Stage under the Crown Prosecution
Service, it is required when deciding if to take cases to court. The test ensures that there is enough evidence
to have a guilty verdict when the case goes to trial through an objective assessment by the prosecutor. The
Full Code Test - https://www.cps.gov.uk/publication/full-code-test. Accessed on 22/07/2018.
169 no.153, p.122, Principle 21
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I will discuss an argument proposed by Parpworth on the effects of the EA educating the courts on

environmental impacts and how this subsequently affects sentencing, continuing from chapter 1

however now with respect to sentencing.170 The Agency currently has a dual purpose as a

prosecutor and educator but with this an apparent conflict of interest arrises which is discussed

below.

The House of Commons Environment, Food and Rural Affairs Committee's seventh report of

2005-06171 mentions numerous times that (a) “all environmental cases should be heard by a

specialist group of Magistrates, who had received dedicated training” 172 and (b) ways in which the

Agency and other governmental branches can improve the court system with respect to

environmental sentencing and prosecutions.173

The conflict of interest begins to appear when we have the main prosecutor (the EA) training the

judges who will try their cases at court. This has indirectly occurred a number of times when the

Courts used the 2010 Costing the Earth - Guidance for Sentencers which the Agency helped

compile, giving them complete access to the decision maker.174 The study by Andrew previously

mentioned, also highlighted that a number of Magistrates judges had received training by the EA,175

again it is important to stress that the Magistrates is the most common court to hear these

environmental summary offences.

170 no.113

171House of Commons - Environment, Food and Rural Affairs Committee, The Environmental Agency,
Seventh Report of Session 2005–06, Vol 1
172 ibid, p. 23
173 no.171, p. 3
174 no.19
175 no.145
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If the prosecution which just happens to have a dual purpose is allowed, then by rights the defence

should also be allowed to discuss matters outside of court. They should be afforded the right “to

educate them as to the public utility of their enterprises and the complexity of the regulatory

provisions with which they are required to comply”176 but are not, this brings up many problems.177

This access to the decision maker that is granted to the main prosecutor of environmental offences,

the EA, is without a doubt another contributing factor to its high success rate of prosecutions. It also

plays a role in its decisions of which cases to prosecute, given they have an upper hand on how

judges might think or favour certain environmental issues. The complexities in environmental cases

and the ways in which the EA decides to prosecute certain cases has left the Courts at a

disadvantage when it comes to being able to sentence fairly and accurately.

The use of custodial sentences which carries a much larger stigma and deterrent element as already

discussed and as will be discussed in the next chapter has been used extremely sparingly. Custodial

sentences are viewed in society as much worse, the law here has the opportunity to remedy some of

the societal harm that has been caused and provide some piece of mind and set precedence, yet this

has not been done. The law fails to successfully attempt to address environmental offence redress,

in particular water pollution, through using penalties that get worked into the business bottomline or

passed on to the public. In order to stop environmental harm of water pollution offences continuing

to occur, the revocation of license has been and will be discussed further. This powerful tool to

completely stop business and any harm has been used only six times in a five year period, given the

potential for remedy this needs to be utilised better.

176 no.145 p.4


177Neil Parpworth, Katherine Thompson & Brian Jones, “Environmental Penalties Utilizing Civil
Penalties” (2005) Journal of Planning and Environmental Law, 561
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Where we see some attempt to make amends is in the use of compensation orders and companies

claims for making things right by donating money to restore, inter alia, water courses. Although

this is a step forward, it has to be viewed with caution. It begs the question, to what extent are

companies donating money and giving compensation in order to reduce their sentence and act as

mitigating circumstances?

3.5 Conclusion

This chapter began by discussing the view on sentencing by the judiciary, criticising the judges lack

of enthusiasm to prescribe new sentencing guidelines or to utilise old ones in great detail. The

Milford Haven Port Authority case served as a pinpoint for the discussion of reduced fines by the

courts when a drastic over £3 million pounds was deducted from the original sentence. The

discussion on preferred methods led to conclusions around the dislike for custodial sentences in

environmental offences, which arguably have a higher deterrent level. The chapter has served to

highlight some of the benefits of the 2014 Guidelines in the form of the 2017 Thames Water Case

which saw an unprecedented £20 million fine, however, the downfalls and issues with the

Guidelines were also discussed in detail. Criticism of the courts fines were also critically analysed

through a ‘fine and profit’ table demonstrating the weak nature of penalties handed down by the

courts. This chapter does offer some suggestions in the form of expert witnesses and specialist

environmental courts for the UK given the complex nature of environmental cases. This chapter

concludes that perhaps the EA are not suitable to be the main prosecutor of environmental offences

in the UK through their ‘easy-win’ reputation and disregard for Agency policies.

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4.0 Alternative enforcement methods: a discussion of civil v criminal
sanctions

4.1 Introduction

Criminal prosecution is by no means the only resort of enforcement that is utilised by agencies and

regulators such as the EA, in fact, criminal proceedings tends to be named the last choice. There are

a number of different methods such as civil sanctions which include: penalty notices, compliance

notices letters and license suspensions, although some of these are not regularly seen, they are being

favoured in more recent times. I will begin by critiquing the Agency through the well established

‘capture theory’ in regulatory enforcement.

This chapter will focus on the alternative type of enforcement methods for environmental criminal

offences, highlighting a potential era of decriminalisation and the issues that can arise by removing

the courts. The Macrory Review will also be discussed in detail with regards to recommendations

for increased use of administrative penalties, however, this paper will critique this recommendation.

Arguing for a flexible criminal system rather than alternative weaker enforcement methods, the

main purpose of this chapter will be to support my previous argument that the EA is not fit to be the

main prosecutor and that de-criminalising environmental offences will only contribute to

increasingly remove the stigma associated with environmental criminal law and begin normalising

these offences.

The previous chapters have served to highlight the issues that exist when attempting to use a

criminal justice system to reprimand environmental offenders, this chapter will critically discuss the

problems that can occur through using the alternative, civil sanctions. Readers might conclude if

there are problems with both criminal and civil routes then what is the best way forward? This will

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be discussed in the recommendations for punishing environmental offenders in the

Recommendations in the Appendix.

4.2 The Environmental Agency: an inadequate enforcer?

These past chapters have highlighted the need for a ‘public interest’ and ‘harm’ especially when it

concerns the initiation of a prosecution as per the EA’s EPP, this is on the strength of a public

interest theory of regulation. However, chapter 3 in particular criticised the EA’s use of its EPP and

concluded that the EA prosecuted easy wins, perhaps moving away from public interest. This

subsection is going to elaborate on this argument that the EA is an incompetent prosecutor from a

different theoretical lens. The opposite of public interest regulation is a notion called the capture

theory, originally a theory in economics - “regulation is effected in order to meet the needs … of

industry… the regulation organisation will be controlled finally by the industry”.178 After the birth

of this theory many in the 60s and 70s hailed for relationships between regulators and industries to

avoid getting too close meaning the regulator was consequently at risk of being captured.179 What is

the relevance of this to the EA and their way of enforcement?

The EA tends to state that criminal sanctions are to be the last resort of enforcement and that a

number of other avenues are explored beforehand, except in cases of a severe nature. Underneath

criminal repercussions are a whole host of other methods, the most commonly used is a persuasive

and cooperative approach with the polluter. This approach is entirely based on the “development of

a continuing relationship between he enforcement agency and the polluter”,180 and in particular

Yanhua Zhang, 'The Capture Theory Of Regulation And Its Implication To The Regulation Of
178

Construction Market' [2009] 2009 ETP International Conference on Future Computer and Communication.
179 Daniel J Fiorino, The New Environmental Regulation (The MIT Press 2006).
180 no.23, p.292
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where a “mutual respect and trust can develop”.181 This approach which is often relied on at the

start of enforcement for many cases and can have dangerous effects in the long run and this close

relationship could be the start of a capture where organisations begin to have a bigger say. The use

of cooperation as a means to capture environmental regulatory enforcements is not in isolation with

the issue being discussed in the United State too.182

There is no doubt that due to their size, large organisations such as the ones discussed in this

dissertation have great clout, power and resources. Although proving the EA wholly unfit to be the

main prosecutor is beyond the scope of this dissertation it is important to highlight issues within this

regulatory organisation that can impact how environmental offences are dealt with. If we look back

at the random picking of cases taken to court from the table in the last chapter it is clear to see

evidence that might suggest a regulatory capture within the industry. Although some large

organisations feature on this table, they are largely of little to no public interest and again little or no

environmental harm, this again helps to understand the relationship between the regulator and the

polluter. Why are those cases with a public interest not being prosecuted? To further assist in

backing up a claim towards a close relationship between the regulator & polluter and a potential

regulatory capture, environmental crime is very frequently criticised for low amounts of

prosecutions, is this a sign of some persuasion from the industry?

The Independent on Sunday investigation through a Freedom of Information request, uncovered

that the Environmental Agency Pension Fund (EAPF) was found to have £50 million pounds

invested in oil and gas companies including Shell and the BG Group, perhaps it is not in their

181 no.23, p.292


182Matthew D. Zinn, Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen
Suits, 21 Stan. Envtl. L.J. 81 (2002).
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interest to prosecute certain large cooperations?183 An even large conflict of interest is that the BG

Group’s director had once been Phillip Hampton, which as will be discussed in the last chapter was

asked to produce a report on regulatory offences, which led to a landmark governmental

deregulation Act.184

The official government EA website states that they aim to provide advice and guidance first to

those who have committed an offence or are highly likely to do so and that all other civil options

are explored before initiating criminal proceedings with prosecution being the last resort.185 The

difficulty of proving mens rea has meant that directors and those in senior positions largely go

untouched as there is a very hard onus of proving guilt,186 the use of license revocations or

suspensions has been likened to being on the same par as imprisonment of these senior member

without the need to prove mens rea. Fines are often thought as part of running a business and

therefore when this choice of sanction is applied, be it a fine from the courts or a civil penalty

business continues, license revocations which would completely stop business and be the most

effective way of sanction however are extremely under used with only six revocations within a five

year period.187 If the EA supposedly resorts to criminal sanctions as the last resort, then there should

be more license suspensions and revocations before prosecutions are initiated.

183 Andy Rowell, 'Environment Agency Investing Pension Fund In Industries It Regulates' (The Independent,
2018) <https://www.independent.co.uk/environment/green-living/environment-agency-investing-pension-
fund-in-industries-it-regulates-is-clear-conflict-of-interest-9946597.html> accessed 28 July 2018.
184 Regulatory Enforcement and Sanctions Act [2008]
185Environmental Agency Official Website <https://www.gov.uk/government/organisations/environment-
agency> [accessed 29/08/2018] and 'Environment Agency Enforcement And Sanctions Policy' (GOV.UK,
2018) <https://www.gov.uk/government/publications/environment-agency-enforcement-and-sanctions-
policy/environment-agency-enforcement-and-sanctions-policy#enforcement-and-sanction-penalty-
principles> accessed 26 July 2018.
186 See chapter 2 on director liability
187 no.49
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To conclude this critique of the EA as an enforcer and the issues that arise using civil low effective

methods is the Environmental Agency v. Stanford case.188 . An EA officer had visited the polluters

site and used cooperative methods for unlawful operations instead of initiating prosecution. On

another visit to the site the officers recommendations had not been taken on board and the illegal

actions were still on going, the officer then initiated prosecution despite attempting to use other

methods first. What this demonstrates is time, money and resources are being wasted and that

perhaps civil methods are not as effective in the long run as criminal proceedings were initiated in

the end. Had criminal proceedings been carried out in the first place the illegal activity and harm

would have been drastically reduced. The relationship and trust built between the regulator and the

polluter might have led to a regulatory capture in this case, where the regulator was in fact working

for the benefit of the industry and not the public interest.

4.3 Deregulation

The criticism of criminal sanctions for punishing environmental offenders largely stemmed from the

lengthy and costly legal process, and more important the low level of sentences and lenient judges

that were discussed in chapter 3.

The Hampton Report189 and the Macrory Review190 are two landmark documents that led to the

Regulatory Enforcement and Sanctions Act 2008 (RESA) after their in depth review and

recommendations for regulatory offences. This Act gave powers to regulators including the EA to a

whole new branch of enforcement, civil sanctions, an appealing flexible alternative to lengthy

criminal proceedings. Therefore, in respect to environmental offences the Environmental Civil

188 Environmental Agency v. Stanford [1999] Env LR 286


Philip Hampton (2005), Reducing Administrative Burdens: Effective Inspections and Enforcement,
189
London, HM Treasury.
190 no.156
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Sanctions Order 2010191 (ECSO) and Environmental Civil Sanctions Regulations 2010192 (ECSR)

are granted the powers of RESA 2008 to the EA and to Natural England. Regulation 5 of the ECSR

relates specifically to the civil sanctions concerning water resources.

To critically analyse this, it is worth noting that ironically the author of the Hampton Report who

was asked by the Government to produce his report, Phillip Hampton, had been an influential

director at a number of large cooperations including: British Steel plc, British Gas plc and Lloyds

TSB. Coincidently, British Steel had three encounters with the EA, one prior to the report ended in a

court case with the two other incidences after the report coincidently only being enforcement

notices.193

The Law Commissions recommendations for regulatory offences certainly supports a move towards

deregulation and criticises the current practice of criminal proceedings for strict liability laws such

as water pollution offences:

“Proposal 1: The criminal law should only be employed to deal with wrongdoers who

deserve the stigma associated with criminal conviction … should not be used as the primary

means of promoting regulatory objectives”194

191 The Environmental Civil Sanctions (England) Order [2010]


192 The Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations [2010]
193 Information taken from the no.163 Accessed on: 28/07/2018.
194‘Criminal Liability In Regulatory Contexts’ - Consultation Paper No 195 (Lawcom.gov.uk, 2018) <http://
www.lawcom.gov.uk/app/uploads/2015/06/cp195_Criminal_Liability_consultation.pdf> accessed 28 July
2018. p.8
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“Proposal 11: … individuals should not be subject to criminal proceedings – even if

they may still face civil penalties – unless their wrongdoing was knowing or reckless”195

In this last proposal, the Law Commission explicitly states that without the mens rea requirement in

criminal law individuals cannot be subjected to a prosecution, with the first proposal going back to

the notion in chapter 1 around stigmas attached to regulatory crimes.

4.4 Macrory Review

Richard Macrory concurs with Hampton with respect to the notion of stigma, stating that these civil

sanctions do not attempt to “create a stigma, but rather to change behaviour and to judge the best

way to achieve this”.196 It is no surprise that Macrory champions for civil sanctions when he

insinuates that he does not believe in strict liability laws as he writes “my concern is for the

company which breaches regulatory requirements through oversight or carelessness…does this

deserve a criminal conviction?”.197 The influential review sets out a six principles for penalties,

these are arguably not dissimilar to criminal sanctions:

1. Aim to change the behaviour of the offender;

2. Aim to eliminate any financial gain or benefit from non-compliance;

3. Be responsive and consider what is appropriate for the particular offender and regulatory issue,

which can include punishment and the public stigma that should be associated with a criminal

conviction;

195 ibid, p.13


Richard Macrory, 'New Approaches To Regulatory Sanctions' (2008) 20 UK Environmental Law
196
Association., p.211
197 ibid, p.211
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4. Be proportionate to the nature of the offence and the harm caused;

5. Aim to restore the harm caused by regulatory non-compliance, where appropriate; and

6. Aim to deter future non-compliance

At prima facie if we take the first principle and critically analyse it, it is very easy to disregard civil

sanctions and these principles and conclude they are ineffective. A search on the EA database

deduced that there has been 1722 enforcement notices from 1999-2018 with 705 court cases from

1998-2018. The little power and stigma that enforcement notices carry means that often they need

to be used regularly leading to increased numbers of their use, the fact that there has been over

double the amount of enforcement notices compared to court cases could mean they are ineffective

in modifying organisations actions. Prosecutions that are progressively seen to carry more stigma

are arguably changing behaviour - being seen as the final and most serious action. If we turn back to

earlier in this chapter, it is best illustrated in Environmental Agency v. Stanford, where weaker

enforcement methods were tried and ignored first, for every couple of lower enforcement methods

there is a court case. Perhaps the EA need to forget about treading on eggshells around organisations

and stop building relationships, wasting time and begin to prosecute more often.

In his report Macrory points towards civil sanctions still resembling criminal sanctions in a certain

way. Point 3.34 in his report discusses that civil sanctions will need reach the same criminal

standard - beyond reasonable doubt.198 This next section discusses whether civil and criminal

sanctions are really that dissimilar.

198 Richard Macrory, 'Regulatory Justice: Making Sanctions Effective' (2006).


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4.5 Civil v criminal sanctions - more similar than we think?

As already discussed, the use of civil sanctions was introduced to offer more flexibility in enforcing

and an alternative to the seemingly failing criminal sanctions. Although as this section has

highlighted they may be more similar than we think, both in their success and foundation. As

Macrory pointed out in his report, the standard of proof is identically to that in criminal law.

Schedule 1, Paragraph 1 (2) of ECSO 2010 states that before imposing a a fixed monetary penalty:

“the regulator must be satisfied beyond reasonable doubt that the person has committed the

offence”.199 With this, there is no deviation from criminal sanctions and perhaps the lengthy process

that is trying to be removed may still prevail. If we deviate and critically analyse Schedule 1, fixed

monetary penalties are capped at "£100 for an individual or £300 for a body corporate”,200 £300 to a

multimillion or billion pound cooperation is the equivalent to £5 to say the least, how effective is

this? Those in support of civil sanctions might point out the power to impose variable monetary

penalties as well which allows for a much higher fine to be handed, however these are equally

capped, albeit higher at £250,000,201 it is still considerably lower than what could be handed down

through the judiciary. It is also worth asking whether a regulator such as the EA should be able to

hand down penalties of that amount given their integrity issues highlighted throughout this

dissertation.

Once again we see fundamental principles of criminal law creeping into civil sanctions of

environmental offences in Article 5 of the ECSO 2010 on combinations of sanctions. Article 5 does

not allow, for example, a fixed monetary penalty to be imposed if a restoration notice has already

199 ECSO 2010, Schedule 1, Paragraph 1 (2)


200 ECSO 2010, Schedule 1, Paragraph 1 (3)
201Policy paper - Annex 1: RES Act - the Environment Agency's approach to applying civil sanctions and
accepting enforcement undertakings <https://www.gov.uk/government/publications/environment-agency-
enforcement-and-sanctions-policy/annex-1-res-act-the-environment-agencys-approach-to-applying-civil-
sanctions-and-accepting-enforcement-undertakings> accessed on 29/07/2018.
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been imposed. This is based on the principle that no one should be reprimanded for the same act

more than once, known as double jeopardy.202

It is also worth pointing out that administrative fines such as the above are regarded in the ‘civil

sanctions’ arena as being just as bad as prosecution and judicial fines. This means that

administrative fines regularly gets regarded as the last resort before initiating criminal sanctions.

Therefore the reluctancy to use criminal sanctions, combined with the reluctancy to use

administrative fines means that in practice enforcement methods tend to be rather weak.

We have seen environmental offences trying to be almost shoehorned into a criminal justice system

and made to fit in a box and it somewhat has failed. The use of civil sanctions was reportedly going

to solve issues and remove the courts, which arguably would cause more problems, however it is

still relying on fundamental criminal law principles. Perhaps the use of civil sanctions should be

taken as a new leap of faith and completely do away with the previous criminal strings tying it

down.

There has been large criticism of the use of civil sanctions violating human rights. Primarily

questions on whether they are a violation of Art 6 of the European Convention of Human Rights

(ECHR), enacted in the UK under the Human Rights Act (HRA) 1998 Art 6, the Right to a fair trial.

An unrelated case however with relevant facts discussed the issue of civil sanctions and the Right to

a fair trial. One of the matters decided in the International Transport Roth GmbH v Secretary of the

State for the Home Department203 was whether or not a fixed penalty system such as the civil

sanctions used by the EA were compatible or not with a Right to a fair trial. Simon Brown LJ stated

202 Margaret Jones, What Constitutes Double Jeopardy, 38 J. Crim. L. & Criminology 379 (1947-1948)
203 International Transport Roth GmbH v Secretary of State for the Home Department [2002] 1 C.M.L.R. 52
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that “the hallowed principle that the punishment must fit the crime is irreconcilable with the notion

of a substantial fixed penalty… therefore…rather than because of the reversed burden of proof that

I would regard the scheme as incompatible with article 6”.204 This being held due to the little to no

opportunities to a defence or a trial.

Although still not strictly compliant with Art 6 of the HRA, the ECSO demands the regulator to

structure its use of civil sanctions through the publication of guidance to the offender under

regulation 11 (a): “the regulator must publish guidance about its use of the sanction”.205 This goes

as far as satisfying subsection (a) of the HRA which states: “to be informed promptly, in a language

which he understands and in detail, of the nature and cause of the accusation against him”,206 but

yet still omits the main requirement to a trial. Therefore, the ESCO and its powers to use civil

sanctions including penalties is incompatible with an overarching human right that needs to be

afforded to all. To add to this the law offers no protection to those who are innocent, those who are

given a fine or a notice are able to appeal against it, however, the notice continues to be in effect

during this process.207

Having said this, when civil sanctions had been successfully used, they produced the highest ever

administrative fine handed for an environmental offence in the UK. The magnitude of the fine is

amplified when compared to some of the lenient fines that are received in the courts. ExxonMobil

were subjected to a £2.77 million fine for an offence under the Emission Trading Regulations,

however, the same powers apply to water pollution offences. 208 Although, despite the potential it

204 ibid, para.47


205 ESCO 2010, Reg 11 (a)
206 Human Rights Act [1998], Art 6 (a)
207 no.23, p.300
208 no.23, p.301
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has to hand out bigger fines outside of the court rooms given the unsettled debate with civil

sanctions and a fair trial it is uncertain the success it might have in the future.

4.6 What is the right way?

There has been a discussion on both the civil and criminal sanctions throughout this dissertation and

the word ‘stigma’ bears a lot of importance. Within criminal law, where there should be a stigma

attached to environmental offenders, there is not, due to low level sentencing and views on

environmental offenders. In civil law, we remove the courts and as soon as the criminal element is

removed, the stigma goes with it regardless of any opinion on environmental offences. There has

been a lot of discussion on fines and payments to regulators and to the courts. Despite there being a

fuzzy understanding on the victims in a large number of environmental cases, the victims often go

uncompensated. Air pollution from a factory affects those living nearby, water pollution in a river

affects those that use it, there are a lot of social costs, not necessarily monetary, that are not

accounted for when producing environmental regulation.

Calabresi puts forward the idea that “policy that formally imposes stigma upon corporate processes

and products adequately accounts for the true social costs”209 that deviate from a “pricing system of

fines accommodates corporate “pay to pollute” behaviour”210 which as seen in chapter 3 is what has

been arguably occurring. Arguing that although organisations might appear to be contributing to a

shared societal goal of productivity, they are able to easily pay off any debt to society they might

incur given their usual massive turnover. The article advocated for a higher amount of

imprisonment of directors and those responsible in corporations, which is in line with “society’s

Darlene R. Wong, Stigma: A More Efficient Alternative to Fines in Deterring Corporate Misconduct, 3
209

CAL. CRIM. L. REV. 3 (2000). p.1


210 ibid, p. 1
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condemnation of an intolerable corporate behaviour”,211 but instead courts or regulators resort to

fines. Cooter rightly points out with regards to the way society may view this failure of regulation

as fines become “payment of money which is required in order to do what is permitted”,212

suggesting that the actions is allowed. Concluding that society is calling for the dangerous actions

of organisations to end and not to come at a cost to someone. Regulation therefore is not factoring

in the true cost to society here and the stigma associated with a wrongful act is just becoming a

payment to a regulator instead.

4.7 Stigma

The facts are that fines, be it administered through a criminal prosecution or through a regulator in

the shape of a fixed or variable monetary penalty is not a strong enough deterrent. Posner argues

that a custodial sentence will ultimately carry shame and stigma which does act as a strong enough

discouragement to reoffending.213 Although as discussed in chapter 2 proving mens rea for the

purpose of imprisonment is difficult, it may be worth taking a longer time to achieve a much better

result. Rather than rushing a court case and arriving at a low level sentence, it might be an idea for

the prosecution to attempt to secure an imprisonment under Regulation 41 (1) of the EPR 2016 to

send a big message to the industry.

4.7.1 Naming and shaming

Larger organisations serving millions and millions of the general public also fear about the stigma

attached to non compliance with regards to publicity and their reputation.214 The first attempt by the

211 ibid, p. 4
212 Robert Cooter, 'Prices And Sanctions' (1984) 84 Columbia Law Review. p.1525
213 Richard A. Posner, Optimal Sentences for White-Collar Criminals, 17 Am Crim L Rev 409 (1980)

Neil A Gunningham, Dorothy Thornton and Robert A Kagan, 'Motivating Management: Corporate
214

Compliance In Environmental Protection' [2005] Berkeley Law Scholarship Repository 27 Law & Pol'y 289.
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EA in 1999 fell short in detail and had very little impact with regard to acting as a deterrent, with

Anglian Water Services who were originally on the list reoffending years later.215 Recent reports

from the EA only detail information such as how many prosecutions occurred in a given year and

the industry, however with no company names. It is clear that the Agency have decided against

naming and shaming as an anti-deterrent. Having said this, naming and shaming has a large scope

to affect a business on different levels such as investors confidence in the company, at stakeholder

level and the basic clients using the services.216 Ivancevich, Konopaske and Gilbert also write about

the success that the shaming remedy in conjunction with criminal sanctions can have, citing a

number of cases where judges orders to divulge criminal past to future employees or public

apologies have been very successful.217 In an era where social media is increasingly forming part of

our lives and being used to dissipate information, it is an idea for the EA to revisit naming and

shaming as a method that could have a lot of success. There has been a lot of technological

advancements since this method was first used in 1999 that would arguably aid in its success.

4.8 Conclusion

This chapter has supported claims that the EA is unfit to prosecute or regulate environmental

offenders. Using the capture theory it is doubtful whether the EA’s interests fully lie in the public or

with the polluters. It has also criticised the EA’s own EPP with the lack of licenses being

highlighted, considering the significant effects that they can have on organisations it begs the

question, why are they not used more often? Deregulation of environmental offences was critically

analysed alongside the Hampton Report and Macrory Review questioning the interest of the authors

215 R v Anglian Water Services Ltd [2003] EWCA Crim 2243


216John M. Ivancevich, Robert Konopaske and Jacqueline A. Gilbert, 'Formally Shaming White-Collar
Criminals' (2008) 51 Business Horizons.
217 ibid
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whose reports led to some historic governmental Acts. The chapter also critically discusses civil and

criminal sanctions concurrently, concluding that they are perhaps not so dissimilar as we think,

underlying principles of criminal law still plague civil sanctions and analysed whether there were

any human right violations with their use. Lastly, the way in which we need to move forward was

discussed, with an suggestion for the true social costs to be considered in regulations and calls for

more imprisonment. The chapter ends with a discussion on the naming and shaming method and the

benefits that could arise should the EA revisit it since its last failed attempt.

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5.0 Conclusion

This dissertation has added to the debate of criminal law as the method of enforcement for

environmental offenders as well as discussing new contentious issues in the field.

The issues of trying environmental strict liability laws that do not require guilt in a system based

fundamentally on proving this guilt has led to a substantial divergence from traditional criminal law.

It can be argued that this move away from criminal principles has clearly had a huge impact on

sentencing of organisations, mainly their increased liability. Although this is a positive, if every

time an environmental case is heard, criminal law principles are put to one side then the stigma

attached is removed ten fold. In this sense, is it even environmental ‘criminal’ law, or is it just heard

in a court that also hears real criminal offences? This dissertation has supported and added to the

view that the attitudes of the courts to certain offences can have huge impacts in the way they

sentence, discussing the ‘cultural homogeneity’ and similarities between judges and ‘respectable’

corporate bodies. The defences available in strict liability laws in particular water pollution offences

has highlighted once again the deviation from criminal law, where fundamental criminal defences

that should apply to environmental law have been dismissed, referring to Lord Hoffmann’s

approach to legal causation. Although environmental offences has decreased in recent years the

amount of environmental harm and the extent of the pollution is arguably increasing. This is

concluded through the increase in fines and the nature of cases, such as repeated breaches of the

law. The 2014 Guidelines hailed as a saving grace for environmental sentencing has not been

without problems and these have been discussed in this dissertation with suggestions provided to

assist in repairing the issues. As already mentioned, although there is increased liability and fines,

in theory these mean very little to multimillion organisations, a table in chapter 3 showing ‘fines v

turnover’ demonstrates very quickly that fines have very little impact on business. The use of

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custodial sentences or revocation of licences which are not usually adopted have been encouraged

in this dissertation. The EA has been hugely criticised in this dissertation for its conflict of interests,

the potential regulatory capture and its peculiar choice of ‘cherry-picking’ cases to take to court.

These issue all have an impact on environmental sentencing, however, the problem is multiplied

given that the Agency is the main prosecutor of environmental cases in the UK.

Lastly, this dissertation has highlighted a number of concerns with the use of civil sanctions, given

that the alternative to criminal sanctions are civil methods this needed to be discussed. The

suggestions in the Macrory Report are critically analysed and it is concluded that perhaps civil

sanctions are not the utopia people hoped for. This dissertation also deduces that perhaps criminal

and civil sanctions are not that dissimilar, pointing to the criminal principles that are still prevalent

in civil sanctions. In the final chapter it is suggested that the use of civil sanctions might end up

with the same issues as criminal sanctions as civil sanctions still require the same standards (beyond

reasonable doubt) and included the criminal principle of ‘double jeopardy’.

To finally conclude, until a specific system or court for environmental offences is devised there are

going to be issues present. We are attempting to introduce the environment which is complex and

constantly changing into traditional system that is not flexible or apt.

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6.0 Appendix

6.1 Recommendations

The follow is a set of recommendations that I set out in order to improve the current system of

hearing environmental offenders within a criminal justice system, to assist the EA as the main

prosecutor of environmental law in the UK as well as suggestions for civil sanctions as enforcement

methods.

1. The majority of cases are heard in the Magistrates Court, it would therefore make sense to

devolve certain powers from the Crown Court. I would recommend that the Proceeds of Crime

Act 2002 applies to the lower courts, even if the maximum able to be recovered is capped at a

maximum, say £50,000.

2. The training of the lay-person in the Magistrates Court and the Crown Court of the complexities

and technical knowledge required for trying and fully understanding environmental cases

should be carried out by an impartial trainer. This would remove the main prosecutor the

Environmental Agency (EA) from gaining access to decision makers and do away with the

conflict of interest.

3. Despite an increase in level of fines following the introduction of the 2014 Sentencing

Guidelines fines handed down by the judiciary are arguably falling short. I suggest more

attention is paid to the turnover of these large companies to ensure that the fine is wholly

appropriate. 218

218 see table 2 in chapter 3 on sentencing.


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4. The issue in sentencing very large organisation has already been seen due to the lack of

guidance the 2014 Guidelines. I suggest that the Sentencing Council produce an Annex to the

main Guidelines in order to clear up confusion and stop different judges ‘multiplying’ the

starting fine at their own discretion to produce disparities across cases.

5. The most obvious suggestion given the issues with sentencing environmental strict liability

offences without the requirement of guilt in a criminal justice system would be to introduce a

fully exclusive Environmental Court. This would be designed to only try these contentious and

complex environmental cases, assistance on how this would work could be found in Australia,

Sweden or India, for example.

6. In continuation of point 5, I recommend to introduce the use of expert evidence that can give

further details on the impacts that might occur on the environment, those impacts that cannot be

seen at the time of the trial to demonstrate the true magnitude of the offence. If an

Environmental Court is not favoured, expert and scientific witnesses in the standard courts used

at the moment is an improvement and will likely see raised sentences.

7. When it comes to the Environmental Agency there are a number of suggestions:

1. The EA should not use its discretion to decide which cases to prosecute so widely and show

further transparency in the cases in arguably ‘cherry-picks’.

2. The EA needs to stick to its Enforcement and Prosecution Policy (EPP) given that it has

begun to prosecute cases with little or no environmental harm and potentially out of the

public interest.

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3. I would recommend for the EA to use its cooperative and precaution methods wisely

given that the relationship they may build could lead to a regulatory capture.

4. The EA should also attempt to prove the mens rea of company directors and senior staff

members given that imprisonment ultimately has a higher stigma attached to it and viewed

by society as worse. The lengthier process should mean less prosecutions however more

meaningful ones. This recommendation also extends to the increased use of license

suspensions and revocations given the effects it can have on the polluter.

5. I suggest that the EA refer back to the previous method of naming and shaming, given the

increased use of technology and social media they may find that this has more success.

8. Civil sanction that attempt to provide an alternative or even replace criminal sanctions to a

certain degree should be carefully revisited as many of the new civil sanctions still contain areas

of criminal law that were previously a problem.

9. The future of using civil sanctions as an enforcement might also come to an abrupt end if the

issue with civil sanctions and human rights is not looked at in further detail and resolved.

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7.0 Bibliography

7.1 Cases

Alphacell Ltd v Woodward [1972] 2 W.L.R. 1320

CPC (UK) Ltd v National Rivers Authority [1995] Env LR 131

Empress Car Company (Abertillery) Ltd v National Rivers Authority [1997] Env. L.R. 227

Environmental Agency v Biffa Waste Services, Eurotech Environmental Ltd [2006] EWHC 1102
(Admin)

Environmental Agency v Brock plc [1998] Env LR 607

Environmental Agency v. Stanford [1999] Env LR 286

Environment Agency v Thames Water Utilities Ltd unreported 22 March 2017 (Crown Ct
(Aylesbury))

Express Ltd (trading as Express Dairies Distribution) v Environment Agency [2003] EWHC 448

Impress (Worcester) Ltd v Rees [1971] 2 All ER 357

International Transport Roth GmbH v Secretary of State for the Home Department [2002] 1
C.M.L.R. 52

Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705

National Rivers Authority v McAlpine Homes East Ltd [1994] 4 All ER 286

R v Anglian Water Services Ltd [2003] EWCA Crim 2243

R v Boal (Francis Steven) [1992] QB 591

R v Dovermoss Limited [1995] Env. L.R. 258

R v F Howe and Son (Engineers) Ltd. [1999] 2 AER 249 (CA (Crim Div)).

R v Friskies Pet Care (UK) Ltd [2000] EWCA Crim 95

R v Kennedy (No 2) [2007] UKHL 38

R v Milford Haven Port Authority [2000] 2 Cr. Appeal. R. (S.) 423

R v O'Brien and Enkel [2000] 2 Cr. App. R. (S.) 358


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R v Thames Water Utilities Ltd [2015] EWCA Crim 960

R v Yorkshire Water Services [2001] EWCA Crim 2635

Shanks & McEwan (Teeside) Ltd v Environmental Agency [1998] 2 WLR 452

Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1

Woodhouse v Walsall Metropolitan Borough Council [1994] Env LR 30

Wotherspoon v HM Advocate [1978] JC 74

7.2 Legislation

Environmental Permitting (England and Wales) Regulations [2016]

Human Rights Act [1998]

Legal Aid, Sentencing and Punishment of Offenders Act [2012]

Regulatory Enforcement and Sanctions Act [2008]

The Environmental Civil Sanctions (England) Order [2010]

The Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations [2010]

Water Resource Act [1991]

7.3 Books

Bell S in Ball S & Bell S on Environmental Law, 4th Ed, Blackstone Press, London. (1997)

Bell S, McGillivray D and Pedersen OW, Environmental Law, Oxford University Press (2013).

Bradfield PJ, Schultz CE and Stone MJ. (1996) 'Regulatory Approaches to Environmental
Management’, p.47 in David R Mulligan, Environmental Management In The Australian Minerals
And Energy Industries (UNSW Press 1996)

Fiorino D, The New Environmental Regulation (The MIT Press 2006)

Radzinowicz L and J King, The Growth Of Crime (Hamilton 1977)

Simester A and R Sullivan, Simester And Sullivan's Criminal Law (Hart Pub 2010)

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Situ Y and D Emmons, Environmental Crime (SAGE 2000)

Wolf S & N Stanley, Wolf And Stanley On Environmental Law (Routledge 2014)

7.4 Journals

Adshead J and Andrew T, 'Environmental Crime And The Role Of The Magistrates’ Courts' [2009]
RICS COBRA Research Conference, University of Cape Town, 10-11th September 2009. pp.
1147-1160

Adshead J, 'Doing Justice To The Environment' (2013) 77 The Journal of Criminal Law.

Bell B and Dadomo C, 'Magistrates' Courts And The 2003 Reforms Of The Criminal Justice
System' (2006) 14 European Journal of Crime, Criminal Law and Criminal Justice.

Bethell E, "Environmental Regulation: Effective or Defective? Assessing Whether Criminal


Sanctions Provide Adequate Enforcement of the Environment,"Plymouth Law Review 2009, no. 1
(2009): 6-7

Bjällås U,(2010) ‘Experiences of Sweden’s Environmental Courts’, 3 J Ct Innovation 177

Bridges K and Hopkins C, 'Appropriate Fines' (2015) 33 The Safety & Health Practitioner.

Briggs D, 'Environmental Pollution And The Global Burden Of Disease' (2003) 68 British Medical
Bulletin.

Brosnan A, 'The New Environmental Offences Sentencing Guideline — A Summary With


Comments' (2014) 16 Environmental Law Review.

Byam J, 'The Economic Inefficiency Of Corporate Criminal Liability' (1982) 73 The Journal of
Criminal Law and Criminology (1973)

Cassidy K, 'The Role Of Motive In White Collar Environmental Crimes' (2009) 23 Natural
Resources & Environment, p.37

Columbia Law Review Association, Inc, The Distinction Between "Mala Prohibita" And "Mala In
Se" In Criminal Law' (1930) 30 Columbia Law Review.

Croall H, 'Business Offenders In The Criminal Justice Process' (1993) 20 Crime, Law and Social
Change, p.364

Croall H, 'Mistakes, Accidents, And Someone Else's Fault: The Trading Offender In Court' (1988)
15 Journal of Law and Society.

de Prez P, 'Excuses, Excuses: The Ritual Trivialisation Of Environmental Prosecutions' (2000) 12


Journal of Environmental Law.

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Devlin P, "Law and Morals" (Published by the Holdsworth Club of the Faculty of Law, of the
University of Birmingham, 1961), p. 3.

Dupont, C. and Zakkour, P. (2003) ‘Trends in Environmental Sentencing in England and Wales’, A
Report by Claire Dupont and Dr. Paul Zakkour, Environmental Resources Management Ltd.
(ERM), November 2003 DEFRA.

Gill G, 'The National Green Tribunal Of India: A Sustainable Future Through The Principles Of
International Environmental Law' (2014) 16 Environmental Law Review.

Grekos M, Environmental Fines – All Small Change?‟ (2004) Journal of Planning and
Environmental Law

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