Documente Academic
Documente Profesional
Documente Cultură
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
September 2018
Acknowledgements 3
Abstract 4
Introduction 5
Aims 6
Objectives 6
1.1 Introduction 9
1.5 Conclusion 19
2.2 Water Resource Act 1991 and Environmental Permitting (England and Wales) Regulations
(2010) (2016) 22
2.6 Conclusion 36
3.0 Sentencing 37
3.1 Introduction 37
3.5 Conclusion 54
4.1 Introduction 55
4.3 Deregulation 59
4.7 Stigma 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
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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
Key words: criminal sanctions; courts; Environmental Agency; strict liability; corporate liability;
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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
- 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
- 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
- Discuss the strictness of the law with respect to water pollution offences and determine the
- 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
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The way in which these aims and objectives will be reached is through four specific chapters which
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
‘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
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
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
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 -
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
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
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
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
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.
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
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.
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
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
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.
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
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
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
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
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.
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
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
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,
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
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
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
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
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
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
“Corporate convictions do not normally involve the same level of stigma as do those arching 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
decriminalise the offences, this will be discussed in depth in the coming chapters.
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
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
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.
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
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
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 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.
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
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, 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
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
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
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
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
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
Pring, George, and Catherine Pring. 2016. Environmental Courts and Tribunals: A Guide for Policy
144
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
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
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
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
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
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
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
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
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
companies who have never committed offences before, and those with minor environmental harm is
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
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
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
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
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
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
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 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
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
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
Group’s director had once been Phillip Hampton, which as will be discussed in the last chapter was
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
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
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
are granted the powers of RESA 2008 to the EA and to Natural England. Regulation 5 of the ECSR
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
“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
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
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
deserve a criminal conviction?”.197 The influential review sets out a six principles for penalties,
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;
5. Aim to restore the harm caused by regulatory non-compliance, where appropriate; and
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
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
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
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
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
sanctions and a fair trial it is uncertain the success it might have in the future.
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
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
fines. Cooter rightly points out with regards to the way society may view this failure of regulation
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
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
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
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
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
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
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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
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
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
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,
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
1. The EA should not use its discretion to decide which cases to prosecute so widely and show
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
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
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Wolf S & N Stanley, Wolf And Stanley On Environmental Law (Routledge 2014)
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