The EU s policy on environmental sanctions Proposal for a directive on the protection of the environment through criminal law

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1 The EU s policy on environmental sanctions Proposal for a directive on the protection of the environment through criminal law 1. Current Community obligations concerning environmental sanctions. Environmental protection is one of the fundamental objectives of the European Community. Since the 1970s, the Community and Member States have adopted a large number of legislative acts aiming at environmental protection and covering many different sectors, such as air, water, waste, chemicals and climate change. The Community s environmental policy can be seen as one of the most advanced in the world. If properly implemented, this policy can go very far towards ensuring a high level of protection of the environment and human health in the Community. Unfortunately, the implementation of Community environmental legislation is still not satisfactory. Environmental legislation is the sector with the highest number of complaints from citizens to the Commission and infringement cases launched by the Commission against Member States for bad implementation of Community legislation. One reason for this appears to be the insufficient level of enforcement of legislation by the Member States. Implementation of Community legislation is in the first instance the responsibility of Member States. Pursuant to Article 10 of the EC Treaty Member States have the obligation to take all measures to ensure the implementation of the obligations arising from the Treaty or from the acts of the Community institutions. This includes the obligation to establish effective sanctions against infringements of Community legislation. The obligation of the Member States to establish administrative or criminal sanctions in certain cases was confirmed by the European Court of Justice in several judgments (1). More recent Community legislative acts often contain a clause spelling out the obligation for Member States to establish proportionate dissuasive, and effective sanctions for breaches of legislation giving effect to Community legislation (2). It is then up to Member States to decide whether to use criminal or administrative sanctions and to determine the levels of sanctions. 2. Sanctions in the Member States. The European Commission has carried out several studies on the sanctions in place in the Member States (3). These studies show that not all serious environmental offences are qualified as criminal offences in all Member States. Some of the most serious environmental offences, such as the illegal shipment of waste, the illegal trade in endangered species or in ozone depleting substances, are not considered criminal offences in some Member States. (1) For example case C-186/98 Nunes-Denunes-De Matos, Rc 1999, I (2) For example Regulation (EC) No 2037/2000 of the European Parliament and the Council on substances that deplete the ozone layer. (3) The studies are available under: RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 1

2 Where criminal sanctions do exist, their levels vary greatly between the Member States. For example for illegal shipments of waste the maximum levels of imprisonment range from 6 months in one Member State to 6 years in another, the maximum levels of fines for corporations range from E 2992 to E It can be seen from this that the general obligation for Member States to take the necessary measures to ensure the implementation of Community legislation has proven insufficient. Sanctions consisting of a fine of a few thousand euros do not have a strong enough deterring effect. In many cases they can easily be considered by perpetrators as minor costs of doing business, in particular when the high profits of illegal activities are considered. The large differences in the levels of sanctions also lead to a situation where perpetrators will tend to concentrate their illegal activities in those Member States with particularly low sanctions. Due to its trans-boundary nature and effects environmental crime is a problem that affects the Community as a whole. 3. Action at Community level. By the end of the 1990s it became clear that the harmonisation of environmental criminal sanctions in the Community was necessary (4). There were, however, different views between the European Commission and the Council on the question how this harmonisation should be addressed. The Commission was of the opinion that harmonising environmental sanctions was part of the Community s environmental policy and thus the harmonising measures had to be adopted on the basis of Article 175 EC Treaty. Accordingly the Commission adopted a proposal for a directive on the protection of the environment through criminal law in 2001 (5). The Council on the other hand argued that criminal law was not a competence of the Community and the harmonising measures could only be adopted on the basis of Title VI of the EU Treaty which concerns the cooperation between Member States in criminal and police matters. The Council did not adopt the Commission s proposal for a directive and chose instead to adopt a Framework Decision on this subject on the basis of the Title VI of the EU Treaty (6). The choice between a first pillar and a third pillar instrument has important implications. Unlike third pillar instruments, directives under the first pillar are adopted by the Council and the European Parliament together, (4) Environmental crime was one of the areas for harmonisation agreed on at the European Council of Tampere in (5) Proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, COM(2001)139 final of 13 marzo 2001, OJ C 180 E, 26 giugno (6) Framework Decision 2003/80/JHA on the protection of the environment through criminal law, OJ L 29, 5 febbraio 2003, p RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

3 with qualified majority instead of unanimity, and their implementation in Member States is subject to the control of the European Court of Justice. The Commission challenged the Framework Decision before the European Court of Justice as it was not in line with Article 47 of the EU Treaty, which prohibits taking measures in the third pillar that fall under the competence of the Community. In its judgment of 13 September 2005 (7) the Court annulled the Framework Decision, because it encroached on the powers of the Community. The Court stated that, while as a general rule neither criminal law nor the rules of criminal procedure fall within the Community s competence (8), this does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal sanctions by the competent national authorities is an essential measure for combating the serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective (9). 4. New proposal for a Directive on the protection of the environment through criminal law. As an immediate consequence of the Court s judgment the European Commission adopted a new proposal for a Directive on the protection of the environment through criminal law (10). This proposal reflects the Commission s interpretation of the judgement according to which the Community may adopt any measure related to the criminal law of Member States that is necessary for the effective implementation of a Community policy (11). The legal basis of the proposal for a Directive is Article 175 of the EC Treaty. The objective of the directive is to establish measures in relation to the criminal law of Member States in order to protect the environment in a more effective way. The proposal does not aim to harmonise national criminal laws but only to ensure that a certain level of environmental protection is achieved. It does not touch upon the powers of prosecutors and judges and does not contain any provisions on criminal procedures. The proposal for a Directive contains the following elements: A) Definition of criminal offences. The proposal draws up a list of nine types of acts which will have to be treated as criminal offences by the Member (7) Case C-176/03 Commission/Council, Rec. 2005, p. I (8) Paragraph 47. (9) Paragraph 48. (10) Proposal for a directive of the European Parliament and the Council on the protection of the environment through criminal law, COM(2007)51 final of 9 febbraio (11) This is explained in the Communication from the Commission to the Council and the European Parliament on the consequences of the judgment of the Court of 13 settembre 2005, COM(2005)583 final. RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 3

4 States, when they are committed intentionally or with at least serious negligence: the discharge, emission or introduction of a quantity of materials or of ionising radiation into air, soil or water, which causes death or serious injury to any person; the unlawful discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause the death or of serious injury to any person, or substantial damage to the quality of air, soil, water, animals or plants; the unlawful treatment, including disposal and storage, transport, export or import of waste, including hazardous waste, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; the unlawful operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; the illegal shipment of waste as defined in Article 2(35), of Regulation (EC) n. 1013/2006 of the European Parliament and of the Council for profit and in a non negligible quantity, whether the shipment is executed in a single operation or in several operations which appear to be linked. the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; the unlawful possession, taking, damaging, killing or trading of or in protected wild species of fauna and of flora specimens or of parts or derivatives thereof; the unlawful substantial deterioration of a protected habitat; the unlawful trade or use of ozone-depleting substances. The offences do not cover all breaches of environmental legislation. As criminal sanctions should only be used as a measure of last resort, only those offences were chosen that pose the most important risks for human health and the environment. The list of offences is a minimum list, enabling the Member States to go further in their criminal laws. The proposal defines as a required mental element of the criminal offences the circumstance that the act is committed intentionally or by at least serious negligence. The expression by at least serious negligence means that the acts committed by serious negligence have to be covered, but that Member States can go further and also cover acts committed by simple negligence. This is only an illustration of the right of Member States to go beyond the minimum standard of the directive. Most of the offences are unlawful acts. The term unlawful is defined by the proposal as infringing Community legislation or a law, an administrative regulation or a decision of a competent authority of a Member State in the field of environmental protection. The list of the criminal offences, however, also contains an autonomous 4 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

5 act, considered as criminal offence even if the act does not constitute a breach of legislation. This autonomous act concerns the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, committed intentionally or with at least serious negligence and causing death or serious injury to any person. For this offence, the result, namely the death or serious injury of a person is considered of such gravity that the requirement of the unlawfulness of the act is not necessary to justify its criminalisation. The general condition remains however that the act is committed intentionally or with serious negligence. The majority of the offences are related to a specific result. These acts have to be considered criminal offences if they cause or are likely to cause the death or of serious injury of any person or substantial damage to the environment. Expressions like serious injury and substantial damage to the environment are not defined in the proposal for a Directive. It will be up to the Member States to define them more in detail. Certain acts are not linked to a result, because they are regarded as a danger per se, without the need to prove a specific damage in an individual case. These acts include in particular the possession, taking, damaging, killing or trade of or in protected animal and plant species, the illegal shipment of waste and the illegal trade in or use of ozone depleting substances. The terms used in the definitions of the infringements should to be interpreted according to the definitions used in Community and national legislation on environmental protection. For example, the protected habitats include the habitats protected on the basis of Directive 92/43/EC on the conservation of natural habitats and of wild fauna and flora (12) and any other habitats protected by the legislation of the Member States. Waste is to be understood as defined in Directive 2006/12/EC on waste (13). The ozone depleting substances are listed in Regulation No 2037/2000 on substances that deplete the ozone layer (14). The participation in the offences and the incitement to commit them must also be considered criminal offences. B) Liability of legal persons. The proposal for a Directive aims to oblige Member States to ensure that legal persons can be held liable for criminal offences committed for their benefit. The proposal lays down the conditions under which the acts of a natural person are attributed to a legal person. The liability of legal persons can be a criminal liability or another form of liability, such as administrative or civil liability. This option was left open in the proposed directive so that those Member States that do not recognise the notion of criminal liability for legal persons will not be obliged to modify their legal system on this point. Legal persons are defined as any legal entity having such status under national law, except for States or other public bodies acting in the exercise of (12) OJ L 206, 22 luglio 1992, p. 7. (13) OJ L 114, 27 aprile 2006, p. 9. (14) OJ L 244, 29 settembre RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 5

6 their sovereign rights and public international organisations. The intention behind the exemption of public bodies is not to exclude all activities of public bodies but only those that are carried out in the exercise of their state authority. The responsibility of legal persons does not exclude criminal proceedings against natural persons acting as perpetrators, instigators or accomplices in the commission of an offence. C) Sanctions. Member States will have to ensure that the criminal offences covered by the future directive are subject to effective, proportionate and dissuasive criminal sanctions. Subject to the taking into account of this general obligation, Member States are free to define the sanctions to be envisaged in their national law. In addition to this general obligation, the proposal for a Directive provides for the most serious cases minimum requirements concerning the type and the level of the sanctions. The most serious cases are those carried out under certain aggravating conditions that are defined by the proposal. a) Aggravating conditions. The proposed aggravating circumstances are: that the conduct caused the death or serious injury to a person; that the conduct caused substantial damage to the environment; that the conduct was committed within the framework of a criminal organisation; that the act was committed intentionally. The terms serious injury and substantial damage are not defined. Member States can define these more in a detail taking into account their traditions and legal systems. b) Sanctions for natural persons. For natural persons, the proposal for a Directive envisages a minimum approximation of the imprisonment terms. Taking into account the moral element (serious negligence or intention) and taking into account the aggravating circumstances, three maximum levels are defined: at least 1 to 3 years when the offence is committed with serious negligence and causes substantial damage to the environment; at least 2 to 5 years when the offence is committed with serious negligence and causes the death or serious injury of a person or when the offence is committed intentionally and causes substantial damage to the environment or when the offence is committed within the framework of a criminal organisation; at least 5 to 10 years when the offence is committed intentionally and causes the death or of serious lesions to persons. This system corresponds to the approach for the alignment of the sentences of imprisonment developed by the Justice and Home Affairs Council in its conclusions of April The Council had justified this minimum maximum level approach by the need, on the one hand, to approximate the sanctions of the Member States and, on the other hand, to show certain flexibility, so that Member States could preserve the consistency of their national sanction systems. 6 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

7 The higher numbers of the ranges were included as a compromise for those Member States who would have favoured more strict sanctions. The legally binding number, however, is the lower number of the range. Member States are in any case free to set higher maximum sanctions. Minimum sanctions are not harmonised. c) Sanctions for legal persons. The proposal for a Directive provides maximum levels of fines for legal persons in the event of serious offences committed by a natural person for their benefit. These sanctions can be of criminal or non criminal nature. The levels of the fines depend on the seriousness of the offences committed by the natural person acting for the legal person. The aggravating circumstances are the same as for the sanctions for natural persons. Proposed maximum levels are: at least EUR 300,000 to 500,000 when the offence is committed with serious negligence and causes substantial damage the environment; at least EUR 500,000 to 750,000 when the offence is committed with serious negligence and causes the death or serious injury of a person or when the offence is committed intentionally and causes substantial damage to the environment or when the offence is committed within the framework of a criminal organisation; at least EUR 750,000 to 1,500,000 when the offence is committed intentionally and causes the death or serious injury of a person. As with the levels of imprisonment, only the lower amounts of the ranges are legally binding. Member States can set higher fines. The minimum amounts are not harmonised. Member States can also apply alternative systems to determine the fines, taking account of the legal person s turnover or of the advantage that it obtained by the commission of the offence or of any other value indicating the financial situation of the legal person. These systems have however to ensure that the maximum levels of fines determined in this way are at least equal to the maximum amounts fixed by the directive. Member States have to inform the Commission of these alternative systems. The proposal for a Directive lists other sanctions and measures that Member States can provide for the legal entities in complement to the fines, in particular the obligation to repair the damage caused to the environment, the exclusion from public benefits or aid, the ban on carrying out an activity, the placement under legal supervision or the publication of the judicial decision relating to the conviction and the sanctions. 5. Implementation by the Member States. The proposal for a Directive will have to be adopted by the Council and in the European Parliament according to the co-decision procedure provided for in Article 251 of the EC Treaty. After the adoption of the directive, Member States will have 18-months to adopt the measures necessary for the transposition of the directive into their national law. Member States will have to communicate to the Commission every three years a report on the implementation of the directive. 6. Outlook. RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 7

8 Discussions on the proposal have started in the Council and in Parliament. On the issue of setting minimum levels of sanctions there are different interpretations of the Court s judgment in case C-176/03. While according to the Council the Community s competence only covers the definition of offences and the obligation of Member States to impose effective, proportionate and dissuasive sanctions, the Commission believes that it covers any measure related to criminal law that is necessary for the effective implementation of the Community s environmental policy, including also the definition of the nature and levels of sanctions. The question whether the Community has the competence to define the nature and levels of criminal sanctions is the subject of a second case that is currently before the Court and where a judgment is expected before the end of the year (15). At the European Council of June 2007 the EU s Heads of Government and State agreed on a draft mandate for an Inter-Governmental Conference on the revision of the Treaties. This agreement includes the insertion of a new article in the Treaty explicitly providing the possibility to define criminal offences and sanctions, if this is necessary for the effective implementation of an EU policy. This would apply not only for environmental policy but for any other area of activity of the EU. It seems thus that the possibility of strengthening EU policies by providing minimum requirements for effective criminal sanctions has been broadly recognised as necessary. If adopted, the directive on the protection of the environment could be one of the first examples of this new type of European legislation. ANNA KARAMAT (*) (15) Case C-440/05. The Commission applied to the European Court of Justice for the annulment of Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal law framework for the enforcement of the law against ship-source pollution. This Framework Decision defines which breaches of the law against ship source pollution are criminal offences and lays down minimum levels of sanctions for these offences. In the view of the Commission the Framework Decision breaches Article 47 EU Treaty as the measures it contains could have been adopted under Article 80 of the EC Treaty. (*) ANNA KARAMAT, European Commission. The views expressed here are purely personal and do not represent any official position of the Commission. 8 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

9 Environmental Enforcement and Sanctions in the United Kingdom 1. Introduction. An effective system of sanctioning underpins any environmental regulatory regime. In the case of business activity, regulatory intervention is by definition required where the market cannot by itself guarantee governmental policy objectives, and sanctions are needed to send correct signals, and ensure at the very least that the non-compliant do not gain an unfair competitive advantage over the legitimate and law-abiding enterprises. In the environmental field, in particular, the way in which enforcement is carried out assumes special significance. In many areas of regulatory law, such as competition law, employment law, and equal rights, there are clear victims of regulatory breaches with legal interests that they can be expected to enforce through legal access to the courts. This is less obvious in the case of the environment where often they will be no direct legal interests impinged, with the result that the responsibilities of public authorities for enforcement of environmental laws are all the more important. In most countries of the European Union, the substantive requirements of EU environmental law are now the major influence on the content of national law. The United Kingdom is no exception. But despite what are often common policy goals, the approach that the United Kingdom has taken towards the formal construction of regulatory sanctions and the enforcement of environmental regulation is in many ways quite distinct from traditions prevailing in many other continental European countries. This is not to say it is better or worse just different. Some of the prevailing features and especially the heavy reliance on criminal law have dominated approaches for over 100 years. Yet there is now a substantial re-think taking place concerning the nature of regulatory sanctions and their use, which has in part been influenced by looking at approaches taken in other parts of Europe and the world. The reforms build upon existing strengths but will have profound consequences for the way in which regulatory sanctions are used in the United Kingdom in the future. Before considering the proposals for change, it is necessary first to consider how the system currently operates, and to highlight a number of features that appear to be peculiarly British, at least when compared to many of its fellow member states within the European Union. 2. Independent Environment Enforcement Agencies. Since the nineteenth century a key feature of the governmental structure in the United Kingdom has been the establishment of national bodies acting at arm s length from central government and with defined responsibilities in law for executing and implementing policy. Such bodies, known as nondepartmental public bodies are legally independent entities from government and normally chaired by a board appointed by government rather than elected members, or representatives of local government. Depending on their legislative remit, some bodies are purely operational, others may have a regulatory function, and others a combination of responsibilities. Staff are employees of the body itself rather than civil servants. Independence is of course somewhat of a nebulous concept, and such bodies may be wholly or RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 9

10 partially dependent on government revenue for their income. Nevertheless, there is a strong tradition that government, even where it has the formal reserve legal powers to do so, does not interfere with day to day decisions. The benefits of such bodies, especially in the regulatory field, are that they can bring consistency in approach and specialist expertise, free from political interference. In a recent official review on the use of independent regulators, nearly all consultees who were subject to regulation agreed that it was preferable to be regulated by an independent regulator rather than a government department (1). Benefits noted included more consistency in decision-making, long term rather than short term decision-making, better transparency and accountability, greater trust between the regulator and regulated, and freedom from undue political interference. In the field of the environment, the gradual transfer of enforcement powers from elected local authorities to newly created independent agencies began at the beginning of the last century in the field of water pollution where river courses did not respect and often crossed over the administrative boundaries of local authorities. From an environmental and hydrological perspective, it was considered preferable to create new regulatory authorities whose jurisdiction covered the whole length of the core main rivers. This process culminated in 1995 with the creation of the Environment Agency which has major regulatory responsibilities across key areas of environmental policy, including waste management, water abstraction and pollution, industrial pollution control (including IPPC), radioactive controls, and inland fishing. It also has extensive operational responsibilities in the field of water management, including flood defence. Local authorities retain significant powers in the environmental field, especially in relation to land use planning and the regulation of smaller businesses potentially causing local environmental nuisances, but the Environment Agency is the core national regulator, and indeed the largest such body in the United Kingdom. The Agency was established as a non-departmental public body with a current staff of around 10,000 and an income derived from three main sources licence fees and charges, flood levies and capital grants, and direct government grant. These used to be in roughly equal proportions, but with an increasing squeeze on the amount of direct government grant there has been a corresponding increase in the amount derived from licence fees and charges. A similar independent agency has been established in Scotland, the Scottish Environment Protection Agency, though with somewhat narrower functions. The exception is Northern Ireland, where core environmental regulation is the responsibility of the Environment and Heritage Service, an agency within but not legally separate from the Northern Ireland Department of the Environment. A recent campaign by Northern Ireland environment groups has called for an independent agency, and resulted in the Government establishing an independent review of governance structures. (1) Better Regulation Task Force (2003) Independent Regulators, BRTF, London. 10 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

11 The Review s final report, published in June 2007 (2), has called for the transformation of the Environment and Heritage Service into an independent environment agency but with enhanced responsibilities. 3. Dominant Use of criminal sanctions. The second distinctive feature of the UK approach to environmental regulation has been the way that criminal law has long been used as an integral part of the enforcement system. The legal sanction for nearly all breaches of environmental regulation or non-compliance with formal notices requiring breaches to be remedied is a criminal offence, ultimately handled by the ordinary criminal courts. There are no general criminal offences concerning the environment but each specific environmental law or regulation creates its own offences thus the deposit of waste without a waste management licence or the deposit of waste in breach of licence conditions is defined as a criminal offence in the relevant legislation. There has been hardly any use of administrative penalties or fines, with the exception of the recent greenhouse gas emissions trading regime for CO2 where civil penalties have been derived from the EC Directive (3). This heavy use of criminal sanctions is not peculiar to the environmental field, but is to be found in most areas of regulation, including workplace safety, and trading standards. The exception of modern financial services and competition regulation where much greater use of administrative penalties is made. The constituents of the criminal offence are to be determined from the legislation itself. Conventional criminal offences such as theft or assault require the prosecution to prove intent or at least recklessness on the part of the defendant. But there is no fundamental constitutional or jurisprudential principle in the United Kingdom that this must be the case, and most environmental regulatory offences can be committed simply by the act itself and without the need to prove any intention, recklessness, or even negligence on the part of the offender (4). Some offences allow for a defence of due care (2) Foundations for the Future, Final Report of the Review of Environmental Governance (the Burke Review), (3) See regs Greenhouse Gas Emissions Trading Scheme Regulations 2003/3311 implementing EC Directive 2003/87/EC. In 2006 the Environment Agency reported that 4 out of 535 companies within the scheme in England and Wales had failed to surrender sufficient carbon allowances at the end of the year, and in accordance with the Directive and implementing regulations had had a total of Euro 1,127,840 in civil penalties imposed on them. Environment Agency Press release 6 December (4) The core water pollution offence, for example, makes it an offence where a person causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste to enter any controlled waters (s 85 Water Resources Act 1991). Where someone is charged with causing pollution under this section, no intention, recklessness or negligence is an ingredient of the offence simply the act of causing the entry. In a recent case, the House of Lords explored the notion of causation in this offence, and held that in this RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 11

12 or due diligence but many in the environmental field do not. This of course makes it much simpler to secure conviction, especially where the internal workings of a business are complex to understand to an external prosecutor. Indeed, it was one of the reasons why the use of so called strict liability offences has proved so attractive in the United Kingdom, ever since their origins in the early nineteenth century when the foundations of modern industrial regulation were laid down. One of the additional implications of the use of strict liability offences is that a legal person such as a company can be convicted of an offence, and the mere act of an employee acting in the course of their employment will render the company liable on the basis of vicarious responsibility it is not necessary to look to a controlling mind of the company as being implicated (5) in order to secure conviction. Most environmental prosecutions are in practice taken against companies rather than individuals, even where the individual employee could also be charged. 4. Enforcement and Sentencing Discretion. Almost every breach of an environmental regulation is therefore a criminal offence, but it does not follow that every breach gives rise to a prosecution. Even if the evidence is 100% certain, prosecuting bodies have a discretion whether actually to initiate any prosecution in respect of a breach. In the few cases where this discretion has been challenged in the courts, the courts have shown themselves very reluctant to interfere with the discretion, provided there is no evidence of corruption, or other unjustified motives that have influenced the decision taken. In England and Wales, the Environment Agency and most other regulators themselves have the power to initiate prosecutions rather than refer the matter to the police or a public prosecutor (6). This combination of functions context it was not necessarily restricted to a positive act by the defendant lack of maintenance of equipment which led to pollution, or even the intermediate intervention of a third party could still amount to causation by the company concerned: Environment Agency v Empress Car Co (Abertillery) Ltd [1998] I All E R 481. (5) Some regulatory offences do require knowledge or recklessness in such cases, if a company is to be convicted, then a senior officer of the company rather than any employee must be proved to have had the requisite knowledge or state of mind in order to transfer this knowledge to the company. The notion of strict liability offences and artificial entities such as companies committing crimes is not unknown is some other European countries, but alien to some jurisdictions such as Germany, Italy and Austria see Faure and Heine (2005), Criminal Enforcement of Environmental Law in the European Union, Kluwer Law, The Hague. (6) Because of different legal traditions, in Scotland and Northern Ireland agencies must refer requests for prosecution to a public prosecutor. But the Agencies still carry out the investigation the role of the prosecutor is to review the evidence and decided whether it is in the public interest to bring a prosecution. 12 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

13 of both inspection and investigation is little known in other European countries (7), and gives considerable power to the regulator, though it will be constrained by general principals concerning the investigation and prosecution of crimes. For example, officers of the Environment Agency, once they move into a criminal investigation mode, are bound by all the various legal requirements that would apply to the police in terms of questioning suspects and gathering evidence (8). Until recently the way in which environmental regulators and other regulators actually decided whether or not to prosecute in a particular case was little understood, though socio-legal studies conducted in the early 1980 s in the field of pollution control tried to provide more clarity on the factors that led to decisions how to respond in individual; cases (9). But now many of the key regulators, including the Environment Agency, voluntarily publish an enforcement policy, which is intended to provide guidance to both the regulated and the general public of the factors that are likely to lead to a decision to prosecute. The current Enforcement Policy of the Environment Agency (10), for example, indicates there that will be a presumption of prosecution, inter alia, where a breach has significant consequences for the environment or the potential for such consequences; where operations are carried out without a relevant licence; where there are excessive or persistent breaches in relation to the same licence or site; where there is a failure to comply with formal remedial requirements; and where there is reckless disregard for management or quality standards. The Enforcement Policy is not legally binding on the Agency, nor is there currently any legal requirement to produce one. It is carefully drafted to allow for exceptions in particular cases, though increasingly defence lawyers have tried to challenge whether a particular prosecution is in accordance with the policy (11). Published enforcement policies are now, though, a stable feature of modern regulation, and the Government is likely to require all regulators in the future to publish such a policy. (7) Of the 11 countries within Faure and Heinés comparative study of criminal enforcement of environmental law (op. cit. footnote 5), the prosecuting body for environmental offences was a public prosecutor, police body or similar public body in all countries except the United Kingdom where the Environment Agency could bring criminal prosecutions. (8) Most notably, Police and Criminal Evidence Act (9) See especially Hawkins K (1984) Environment and Enforcement: Regulation and the Social Definition of Pollution Clarendon Press, Oxford. (10) Environment Agency Enforcement and Prosecution Policy Reprinted in Journal of Environmental Law, Vol. 12 No 1 pp (11) In a recent case, R v Adaway [2004], EWCA Crim 2831, the Criminal Court of Appeal held that a local authority prosecution concerning trading standards in clear breach of its published enforcement policy which had unwisely been expressed in absolute terms should be struck out as oppressive. RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 13

14 The circumstances of any particular case set against the general principles of an enforcement policy will therefore affect the decision whether to prosecute in the first place. Once a case reaches court, a further element of discretion applies in that the judiciary themselves have extensive choice in the sentence that is imposed, within maximum penalties prescribed in legislation. Again, this discretion will, or at least should in theory, reflect the court s assessment of the seriousness of the breach, with the possibility of very low fines or even a discharge where there is technically an offence but no evidence of intention or recklessness, and greatly increased sentences where intention or recklessness is present, or where there have been repeated breaches by the same business. 5. Enforcement in practice. In addition to actual enforcement, a regulator such as the Environment Agency has other powers that can be exercised in response to any particular regulatory breach. A formal notice requiring a company to comply with the regulatory requirements within a specified time can be served and breach of the notice is itself a criminal offence. Formal cautions or warning letters can be issued advising the company not to repeat the offence. Informal advice warnings or advice can also be given. In 2004/5 the Environment Agency brought around 900 prosecutions with an over 90% success rate. This represented about 11% of total enforcement actions taken in respect of discovered breaches. About the same proportion took the form of formal cautions or notices, while about three quarters of the response took the form of warning letters. The sentences imposed on companies or individuals where prosecutions are taken vary considerable. There are occasionally very large fines in the higher courts, but the average fine for the Environment Agency in 2004/5 was just over 5000 (12). Even then there are disturbing regional variations which are difficult to explain for example, the average fine in the South West of England was 2000, whilst in the Anglian region was over 7000 (13). Examples can be given where fines do not exceed the financial gain from non-compliance. An Oxfordshire man, for example, was fined 30,000 for abandoning 184 drums of toxic waste, but had been paid 58,000 for their disposal, and it cost the Agency nearly 170,000 to incinerate the waste (14). Magistrates tend to be defensive of their sentencing discretion when faced with such examples, and explain that each case must be considered on its own facts, and that especially when dealing with an individual they are obliged to have regard to the defendant s financial circumstances at the time of conviction. Recidivist offenders will ensure that any profits made at the time of the offence are no longer in their hands when it comes to conviction in the courts. The level of (12) Evidence to submitted to Macrory Review (2006), Regulatory Justice: Sanctioning in a Post-Hampton World, Consultation Document, Cabinet office, London. (13) Ibid. (14) Ibid. 14 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

15 the fine, though, is not the only consequence of a prosecution. The conviction itself imposes something of a stigma and may, for instance, make it difficult to acquire a waste management licence in the future. Nevertheless, there is a strong view that fines for environmental regulatory offences are generally not sufficiently high at present. One response that the Environment Agency has taken to the apparent low level of fining has been to produce an annual report listing companies that had been convicted by name and in order of fine and by different sectors (such as waste management companies, water companies, the chemical sector). Information concerning conviction is a matter of public record, but had never been collated and published before in such an accessible manner. The so-called Hall of Shame was launched in 1999 and attracted significant national press and media publicity (15). Many industries, particularly those with public shareholdings, were clearly concerned at appearing at the top of such lists. Since then the Agency has continued to publish an annual report but this is now entitled Spotlight on Business Environmental Performance, and in addition to listing prosecutions and fines now includes examples of good practice where industries are considered to have performed beyond strict regulatory requirements an attempt to provide a carrot as well as a stick. 6. Rethinking Regulatory Sanctions. A major re-evaluation of the British system is now under way, initiated in 2004/5 when the Treasury commissioned the Hampton Review to examine generally the way that regulators dealt with business. The Hampton remit went well beyond the environmental field and covered some 61 national regulators as well as local government, covering such areas as workplace safety, trade descriptions, food safety, and building controls. Hampton (16) concluded that many regulators, especially in local authorities, were adopting an over-bureaucratic, tick-box approach to regulations and enforcement. He urged regulators to adopt a more risk-based approach, which would concentrate limited resources on the truly non-compliant, and take a lighter touch to businesses that were clearly intent on compliance. Although the Hampton Review was initiated within a general policy spirit of reducing regulatory burdens on business, Hampton acknowledged the overriding importance of an effective sanctioning system, but concluded that there was over-reliance of criminal prosecutions resulting in what were disproportionate responses to particular breaches, and a cumbersome system which could not apply sanctions in a speedy and effective manner. Nevertheless, he recognized that any re-evaluation of the current system raised complex legal (15) E.g. The Times, March ICI heads list of worst polluters, The Guardian March Worst polluters named in official list of shame. (16) Reducing Administrative Burdens: Effective Inspection and Enforcement HM Treasury, London, March RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 15

16 and policy issues, and advised government to initiate a further review specifically focussed on sanctions. 7. The Macrory Review on Regulatory Sanctions. In 2005 Professor Richard Macrory was appointed by the Cabinet Office to conduct a review on regulatory sanctions as suggested by Hampton. The final report was published in November 2006 (17), and all the recommendations accepted by Government. As with Hampton, Macrory s remit went way beyond the field of environmental regulation, and included some 61 national regulators, as well as local authorities. The Review indicated clearly the dominance of the criminal sanction is nearly all these areas of regulation, but equally that in practice a criminal prosecution was often a lengthy and time-consuming business, and the final results in the criminal courts often did not seem to penalize sufficiently. In almost every area of regulation there existed at one end of the scale what might be termed rogue traders, individuals or companies that consciously broke the law for economic gain. At the other end might be the legitimate business which through, say, an unforeseen accident, breached controls but with little serious consequence strictly, this would be a criminal offence, but few would argue that a prosecution was necessary or appropriate. But in the middle were a range of circumstances where some sort of formal sanction was required the legitimate business which did not give sufficient priority to regulatory compliance, the business that is careless rather than reckless, the accidental breach of regulation but with very serious consequences such as the death of a worker. The core question was whether this should always be a criminal sanction, effectively the only formal response available to most regulators. 8. Penalty Principles. Macrory began by outlining six core principles that he recommended should underpin the design of any sanctioning system. The most important two principles were that a sanction should aim to change the behaviour of the offender so that it is not solely focussed on punishment but ensure that the offender is less likely to break the law in future. The second key principle was that a sanction should aim to eliminate any financial gain or benefit from non-compliance, thus reducing any financial incentive to break the law. It was clear from the evidence that the circumstances in which regulatory breaches occurred varied tremendously, and the next two principles were that any sanctioning system should be responsive to the particular case in hand, and that any sanction should be proportionate to both the nature of the offence and the harm done. Macrory s fifth principle was that a sanctioning system should where appropriate be designed to assist restoration of damage caused by the breach. Too often victims of regulatory breaches found themselves ignored by the legal system dealing with the sanction, and had to seek recompense through other legal routes. It should, though be possible to devise (17) Regulatory Justice Making Sanctions Effective, 2006, Cabinet Office, London. 16 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

17 a sanctioning system to assisted or encourage restoration rather than leaving it as an add-on. The final principle was a sanction should aim to deter future non-compliance, particularly amongst the regulated community. In some cases, this would involve sending a signal of social stigma. 9. A richer range of sanctions. Using the penalty principles as a basis for critiquing the current system, Macrory concluded that while the use of criminal law was entirely appropriate for certain types of breaches, the UK was in effect making a single offence do too much work. In many ways, the over-use of the criminal law had devalued its impact, with courts and the lawyers often describing regulatory offences as technical rather than real crime (18) and a richer range of sanctioning tools was required. Many of the proposals made by Macrory were not totally new. Some were already used by economic regulators in fields such competition or financial regulators. Countries such as Australia and New Zealand were masking use of new types of sanction in specific areas of regulation, and the report drew on the best of contemporary practice. Even where a criminal prosecution was considered appropriate, the powers of the criminal courts were very limited essentially all they could do was to impose a fine (19) or, in the case of individuals charged, imprison. Macrory recommended a greater range of powers be made available to the criminal courts in dealing with regulatory crime. First, where there was a clearly identifiable profit that had been made from regulatory non-compliance (such as the non-payment of a licence fee) the criminal court should have the power to impose a profits order which would simply remove that element. This would be in additional to any fine with the fine representing the seriousness with which the court viewed the breach. In the case of small and medium sized companies, in particular, a fine might be inappropriate as a sanction, and Macrory recommendation various forms of business rehabilitation order which might, for example, require external audits or retraining within the business. Finally, he suggested that the criminal courts should have the power to impose publicity orders, requiring the business to take out public notices in the press explaining the breach and the steps being taken to ensure compliance in the future. Such reputational orders can have a signi- (18) Macrory argued, for example, that a unlicenced waste carrier who collects waste for profit and then dumps it in open countryside should be considered just as much a criminal as a shoplifter. But the current system often made it difficult to distinguish between the truly criminal (itself of course a socially contestable concept) and the regulatory non-compliant. (19) In 2004, over 96% of prosecutions against companies for regulatory breaches resulted in a fine: this can be contrasted with prosecutions against individuals where various forms of non-financial sentence, such as community service orders, make up almost 30% of the sanctions imposed: Regulatory Justice Sanctioning in a Post Hampton World Consultation Document May 2006, Cabinet Office, London. In the environmental field, prison sentences are rarely imposed except in the field of illegal waste disposal. RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 17

18 ficant effect on company behaviour (20). It was Macrory s recommendation for administrative penalties, however, that attracted most public attention, and are likely to have to most radical long-term effect on UK traditional approaches in the long term. He recommended that in response to any regulatory offence, the regulator should have a wider range of sanctioning responses. A criminal prosecution might be appropriate, but the regulator should always as an alternative response have the power to impose an administrative penalty direct on the business concerned. For some minor offences the penalty might be fixed in law, but for most regulatory offences the size of the penalty would be determined at the discretion of the regulator, and would probably have no upper limits (21). It would be for the regulator to determine the principles by which a penalty was to be calculated (deductions could be made, for example where a company had voluntarily admitted the breach and/or voluntarily compensated victims or restored the environment, thus using the sanctioning system to incentivize positive behaviour). In addition there were circumstances where it would be appropriate for the regulator to accept an undertaking from the business concerned, under which the business in breach offered commitments in return for any sanction (whether criminal or administrative) being suspended as long as they complied with their undertaking. 10. Regulatory Governance. Macrory wanted regulators to have access to a much wider range of sanction options in addition to criminal prosecutions, but with greater powers comes greater responsibility. He therefore proposed a number of significant principles concerning regulatory governance. Regulators should, for example, always have a published enforcement policy which would indicate the circumstances in which they were likely to invoke different sanctions options (22). The principles by which administrative penalties are to be calculated should always be publicly available. There should always be a right of appeal against the imposition of an administrative penalty, and Macrory recommended that this should not be to the ordinary courts but to a new specialized regulatory tribunal. A key principle was that the choice of the (20) Australian criminal courts may impose adverse publicity orders under certain state laws see, for example, Protection of the Environment Operations Act 2003, (New South Wales) and Occupational Health and Safety Act 2000 (New South Wales). (21) Such penalties can be imposed by competition authorities but are limited to 10% of the financial turnover of the company in practice, Macrory felt this raised too many complexities in legal interpretation. (22) At present there is no legal requirement to publish such a policy. Regulators such as the Environment Agency and the Health and Safety Executive have for almost a decade published an enforcement policy which they feel assists regulatory compliance and public confidence. But out of 61 national regulators within the scope of the Macrory Review, only 17 had such a published policy. 18 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

19 sanction should be determined by the core penalty principles rather than any other distorting factor. Thus any income from administrative penalties should never go directly to the regulator itself, and regulators themselves should avoid other distorting incentives such as staff targets for particular types of sanctions. Regulators should provide annual reports on the number of enforcement actions they take and the different types of sanctions used, but accounting for outputs was not sufficient in itself. It was essential that regulators regularly reported outcomes (trends in environmental quality, numbers of workplace accidents, etc.) so that one could have some way of judging the effectiveness of the sanctioning system being used. One of the central features and ultimate strengths of both the Hampton and Macrory Reviews was the fact that they crossed so many areas of regulation. Despite very different substantive laws, different regulatory bodies, and different profiles of regulated business, it was remarkable how many common features and common challenges were apparent. Too often regulators appeared to operate within their own specialized silo. Macrory therefore recommended that Government facilitate greater cooperation and exchange of information between regulators concerning the development and use of sanctions. In addition, there should be a new Parliamentary committee established dealing with Regulators generally (23). 11. Implementing Macrory. The Government accepted all the recommendations in the Macrory report, and has set up a team to implement the proposals (24). Macrory did not wish to force his proposals on all regulators, and accepted that some might convincingly argue that their existing powers were sufficient to handle the challenges they faced. The Government has therefore initiated implementation by publishing draft legislation, which provides framework powers concerning administrative penalties and undertakings (25). The Bill is likely to be passed during 2008, and will give powers to individual Ministers to make regulations applying the new powers to particular regulators falling within their remit. Improving the criminal side of enforcement in line with (23) Currently, Parliamentary Select Committees are largely established to monitor each government department, and may investigate a regulatory body falling within the remit of that Department. Thus the House of Commons Select Committee on Environment, Food and Rural Affairs regularly investigates the work of the Environment Agency, and Macrory recommended no change to this individual accountability. But there is no Parliamentary committee at present which can look at regulators as a whole. (24) Originally within the Cabinet Office but following departmental reorganization after the appointment of Gordon Brown as Prime Minister in June 2007 now in the new Department of Business, Enterprise and Regulatory Reform. (25) Consultation on the Draft Regulatory Enforcement and Sanctions Bill May 2007 Cabinet office, London. RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE 19

20 Macrory is likely to be handled by the Ministry of Justice under separate initiatives. Many of the types of sanctions proposed in the Macrory review may have been untested in the areas of regulation within his remit, but they were not totally new. In the United Kingdom administrative penalties, for example, have been extensively used in the field of economic regulation over the past few decades, and are a commonly used sanction in many continental European systems, especially in the field of environmental regulation. Conversely, while the heavy reliance on the criminal sanction is perhaps distinctively British, criminal sanctions are employed in many other European countries, and indeed the European Commission has proposed their greater use in the field of the environment (26). But the reforms now taking place in Britain will be much more than simply adding administrative sanctioning powers that are already used in other countries. Taking the field of environmental regulation, a single regulator such as the Environment Agency will be responsible for both licencing, inspection, and investigation of potential offences. If it has evidence of an offence, it will decide whether a criminal prosecution or an administrative sanction (or indeed simply a warning) is the most appropriate response, in line with both the general principles concerning the aims of a sanctioning regime, its published enforcement policy, and the particular circumstances of the case in hand. At the end of the day the Environment Agency will be accountable for its policy and the way it has exercised choices through heightened requirements concerning reporting and publicity, both on outputs and environmental outcomes. The goal is to create a cohesive system of regulatory sanctions, spanning both criminal and administrative approaches that operates in a coherent manner, and against a clear understanding of the purposes of sanctions. It is likely to take at least five years before such a system is effectively in place, but if Britain achieves creating such a system may prove to be a valuable model for others to build upon. Richard Macrory (*) (26) Proposal for a Directive of the Protection of the Environment through Criminal Law, COM(2007) 51 final, 9 February (*) Richard Macrory is a barrister and professor of environmental law at University College where he directs the Centre for Law and the Environment. He has been a board member of the Environment Agency in England and Wales. 20 RIVISTA GIURIDICA DELL AMBIENTE - 1/ ADDENDA ONLINE GIUFFRÈ EDITORE

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