Doing Justice to the Environment

AuthorJulie Adshead
Date01 June 2013
DOI10.1350/jcla.2013.77.3.841
Publication Date01 June 2013
SubjectArticle
Doing Justice to the Environment
Julie Adshead*
Abstract This article examines some of the characteristic features of
environmental offences, in particular the ways in which these offences
and their treatment in the courts deviate from general principles of
criminal law. Despite the fact that environmental offences are often
labelled as ‘quasi-criminal’, there has been long-standing criticism of
penalties, particularly the low level of f‌ines in magistrates’ courts. The
article also considers the possible reasons behind this and argues that, as
well as the inexperience of lay magistrates, the perception of environ-
mental crime, fuelled by the strict liability nature of most environmental
offences, is a signif‌icant factor. The recent introduction of civil sanctions is
evaluated along with recommendations for new sentencing powers and
sentencing guidelines. The article concludes by considering further sug-
gestions for more effective enforcement of environmental crime in the
courts, including the introduction of specialist magistrates’ courts and the
use of more fault-based offences or a general defence of due diligence for
environmental crimes.
Keywords Environmental crime; Strict liability; Causation; Magis-
trates’ courts; Sentencing
Environmental offences, along with other regulatory offences, are com-
monly referred to as not truly criminal in nature.1The perceived lack of
moral blameworthiness for regulatory offences is a signif‌icant justif‌ica-
tion for the imposition of strict liability. Due perhaps to the fact that
culpability is not such an issue with environmental offences, the courts
have also taken a different approach to causation than normal in crim-
inal law.2However, the focus of environmental law has changed signif‌ic-
antly over recent times. Whereas initially environmental regulation was
primarily concerned with the threat to public health, the protection of
the environment is now recognised as important to the survival of
mankind. Accompanying this change in focus comes recognition that
serious breaches of environmental regulation should be met with appro-
priately robust sanctions and carry the stigma of criminal conviction.
However, despite high potential penalties, the courts have come under
criticism for the low level of f‌ines imposed, which, it is argued, do not
ref‌lect the cost of non-compliance and do not act as a deterrent.3
* Senior Lecturer in Law, University of Salford; e-mail: j.d.adshead@salford.ac.uk.
1Sherras vDe Rutzen [1895] 1 QB 918 at 922; A. P. Simester, G. R. Sullivan,
J. R. Spencer and G. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine,
4th edn (Hart: Oxford, 2010); K. Hawkins, Environment and Enforcement; Regulation
and the Social Def‌inition of Pollution (Clarendon Press: Oxford, 1984); M. Grekos,
‘Environmental Fines—All Small Change’ [2004] JPL 1330.
2Alphacell Ltd v Woodward [1972] AC 824; Environment Agency v Empress Car Co.
(Abertillery) Ltd [1999] 2 AC 22.
3 C. Dupont and P. Zakkour, Trends in Environmental Sentencing in England and Wales,
A Report by Environmental Resources Management Ltd for DEFRA, November
2003; C. Hatton, P. Castle and M. Day, ‘The Environment and the Law—Does our
Legal System Deliver Access to Justice? A Review’ (2004) 6 Env Law R 240.
215The Journal of Criminal Law (2013) 77 JCL 215–230
doi:10.1350/jcla.2013.77.3.841
Features of environmental offences
The general water pollution offence provides a good example of a typical
strict liability environmental provision. It is an offence under reg. 38 of
(SI 2010 No. 675) to contravene reg. 12(1), which states:
A person must not, except under and to the extent authorised by an
environmental permit
(a) . . .
(b) cause or knowingly permit a water discharge activity or groundwater
activity.
There are two separate offences here, but because of the ease of prose-
cuting the causing offence, the knowingly permitting offence is rarely
pursued. The only relevant consideration for the court in the former
offence is whether the defendant has caused the entry of the polluting
matter into the water course.4Similarly worded offences are to be found
in, for example, waste management provisions.5
The decision in the case of R vDovermoss Lt6clearly demonstrates that
the thrust of the general water pollution offence7is not, in fact, upon
pollution, but upon entry of potentially polluting matter. A water supply
was contaminated by ammonia from animal slurry on a nearby f‌ield.
The defence argued that the receiving waters had not suffered any harm
and ammonia levels in the water supply did not exceed maximum
concentrations permitted under drinking water regulations. The court
held that it was not necessary for the prosecution to prove that the
substance had actually caused harm, it was suff‌icient that there was a
likelihood or capability of causing harm to animal or plant life or those
who use water.
Defences to environmental offences tend to be limited and narrowly
interpreted. Again, using the general water pollution offence as an
example, there is a defence for acting under an environmental permit in
reg. 12(1) and there are defences in reg. 40 of EPR 2010 for discharges
from abandoned mines8and emergency.9The defence of emergency is
subject to a requirement to minimise harm and report to the regulator
within a reasonable time period.10 This defence has been narrowly
interpreted by the courts and it can be seen from the case of Express Ltd
vEnvironment Agency11 (one of the rare cases when the defence was
successfully raised) that the element of emergency is not of primary
concern to the court, but rather that the action is done to avoid danger
4 Environmental Permitting (England and Wales) Regulations 2010 (SI 2010
No. 675), Sched. 21 (hereafter EPR 2010).
5 Environmental Protection Act 1990, Part 2, s. 33(1).
7 Then located in s. 85(1) of the Water Resources Act 1991.
8 EPR 2010, reg. 40(2).
9 EPR 2010, reg. 40(1).
10 EPR 2010, reg. 40(1)(a) and (b). Similar defences can also be found in relation to
waste in EPR 2010, reg. 40, and for nature conservation in the Wildlife and
Countryside Act 1981, s. 28(8)(b).
The Journal of Criminal Law
216

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