Self–Monitoring, Self–Policing, Self–Incrimination and Pollution Law

Date01 March 1997
AuthorWilliam Howarth
DOIhttp://doi.org/10.1111/1468-2230.00075
Published date01 March 1997
Self-Monitoring, Self-Policing, Self-Incrimination and
Pollution Law
William Howarth*
Introduction
Until quite recently, bringing criminal proceedings for an offence of water
pollution almost invariably entailed the submission of evidence of analysis of river
water quality,
1
painstakingly collected according to a formal sampling procedure
which had to be followed meticulously by the regulatory authority if the evidence
was not to be rendered inadmissible. Alongside major changes in the
administration of pollution control, new legislation has abolished the need for
this sampling procedure and created a new presumption in relation to admissibility
of certain evidence of this kind. Sophisticated new technological developments
have allowed water quality and discharges of effluent to the aquatic environment to
be automatically monitored either by the regulatory authority or the discharger.
Significant legal issues are raised as to the status of these new forms of evidence,
the protection which is afforded to an alleged polluter and the general approaches
towards environmental regulation that they make possible. The purpose of this
article is to assess the implications of these administrative, legal and technological
innovations on proceedings for water pollution offences and other kinds of
environmental crime.
Essentially, the discussion falls into three parts. The first part provides an
account of the environmental regulatory arrangements recently provided for under
the Environment Act 1995, and some specific observations concerning the
application of these to pollution law enforcement. The second part provides an
analysis of new powers and duties in relation to the measurement of water quality,
and a discussion of their practical application in requiring, or allowing for, the
monitoring of water quality either by the regulatory authority or the dischargers of
wastewater. The third part deals with the evidentiary implications of requiring
potential polluters to monitor their effluent and provide corresponding information
to the regulatory body, and the special difficulties which surround admissibility of
this information in legal proceedings. Despite the issues having been raised and
illustrated in the context of water pollution, it is suggested that they demonstrate
broader concerns about environmental policy, and the issues entailed by
environmental self-monitoring may give rise to some significant difficulties in
The Modern Law Review Limited 1997 (MLR 60:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.200
*University of Kent at Canterbury.
The inspiration for this article derived from work undertaken for a research project for the Environment
Agency for England and Wales, Instrumentation for Self-Monitoring, in collaboration with the
environmental consultants METOC plc. The author is grateful to Dr Mike Osborne of METOC, Anne
Brosnan of Anglian Region of the Environment Agency, Steve Uglow of Kent Law School, Robert Lewis,
Barrister, and Mike Nash of Simmons and Simmons for helpful discussion and observations on the original
study. Valuable comments on an earlier draft of this article were provided by Donald McGillivray and
Richard de Friend of Kent Law School, and Edward John of Pritchard Englefield. While the author is
extremely grateful to all the above for their help, the views expressed are those of the author alone and, in
particular, should not be taken to be representative of the Environment Agency.
1 More precisely, ‘controlled’ water quality, encompassing stillwaters, sea waters and groundwater;
see n 17 below.
practice. Whether, and how, these difficulties may be resolved depends upon
fundamental issues of environmental management strategy in relation to pollution
control. Ultimately, the key question needing to be addressed is why environmental
self-monitoring, or self-policing as it may turn out to be, is thought to be a
desirable feature of environmental management and the ultimate quest for
sustainable development. The answer to this question has to be a major
determinant of the legal response.
The Environment Agency
Administrative background
The 1990s have been a period of significant development in environmental law in
the United Kingdom, with the enactment of a substantial body of legislation
concerning environmental protection, and particularly pollution law,
2
and the
consolidation and extension of regulatory obligations with regard to the
environmental media of air, water and land.
3
Even more momentous changes
have taken place in the mechanisms by which environmental legislation is
administered, implemented and enforced.
Previously, it was recognised that the administratively fragmented system of
pollution controls applicable in the United Kingdom was subject to serious
criticism in environmental management terms, and lacked a coherent and holistic
approach to environmental regulation. It was suggested that consolidation of
pollution regulation authorities was needed to achieve greater integration of
pollution control in relation to the environment as a whole, as contrasted with the
previously sectoral approach to the different environmental media.
4
In addition, it
was recognised that establishment of a unified environmental authority would
make it easier for regulated bodies to have only one inspectorate to approach (the
2 Key primary enactments over this period have been the Environmental Protection Act 1990, the
Water Resources Act 1991 and the Environment Act 1995, and a lengthy list of secondary measures
have been made to implement these.
3 Environmental Protection Act 1990, s 1(1) states that the ‘environment’ ‘consists of all, or any, of
the following media, namely, the air, water and land.’ This implicitly draws a contrast between the
environmental media themselves and the living contents of those media, and the ecosystems which
they support. ‘Pollution of the environment’ is stated to mean ‘pollution of the environment due to
the release (into any environmental medium) from any process of substances which are capable of
causing harm to man or any other living organisms supported by the environment’ (s 1(2)). While it
is recognised that the apparent circularity of this definition, and the questions that it begs as to what
is to count as an environmental ‘harm,’ leave something to be desired in terms of precision and
completeness, it is in this sense that this article is concerned with ‘pollution law’ rather than broader
senses in which the terms ‘environment’ and ‘pollution’ may sometimes be used: see generally Ball
and Bell, Environmental Law (London: Blackstone, 3rd ed, 1995) ch 1.
4 Attention had originally been drawn to the problems of an administratively fragmented system of
pollution control by the Royal Commission on Environmental Pollution: see Fifth Report, Air
Pollution Control: An Integrated Approach (1976) Cmnd 6731; and it had been suggested that
regulatory and administrative controls should seek the best practicable environmental option for the
environment as a whole: see Twelfth Report, Best Practicable Environmental Option (1988) Cm
310. To some extent, these proposals were translated into law by the implementation of a system of
integrated pollution control, applicable to the most environmentally hazardous industrial processes,
under Part I of the Environmental Protection Act 1990, and the establishment of Her Majesty’s
Inspectorate of Pollution to regulate these ‘prescribed’ processes and substances. However, it may be
observed that this constituted a rather restricted implementation of pollution integration since the
greater bulk of legal controls continued to operate on a sectoral basis entrusted to other
environmental regulatory authorities.
March 1997] Self-Monitoring and Pollution Law
The Modern Law Review Limited 1997 201

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