The Law Society, 113 Chancery Lane, London
Tuesday 30 November 2004
The Legal Secretariat to the Law Officers
Attorney General’s Chambers
9 Buckingham Gate
Tel: 020 7271 2400
I’m very pleased to have been invited by Elliot Morley to this conference.
It gives me the opportunity to hear some of your debates and to say a bit about the justice system and the environment.
I have the opportunity to join you in this debate at what I believe is an important time because as Solicitor General I am one of the government’s Law Officers and deputy to the Attorney General, Lord Goldsmith and we have professional superintendence of lawyers in government and in national agencies and therefore work with the prosecutors in the Environment Agency.
Ric Navarro, David Stott and their colleagues, Environment Agency prosecutors are here and I’m pleased to have the opportunity to say how much we should value
* Their professionalism and
* Their commitment and dedication and
* The enormous importance of their work
Approximately, 48,000 members of the public called the Environment Agency last year. Alerting the agency to pollution of water, outflows of untreated sewage into people’s gardens or homes and toxic clouds blacking out the sky.
It is the role of the prosecutors to examine the evidence, to decide whether there is enough evidence to bring a prosecution, to weigh up the public interest and to decide whether to bring the case to court. There are about 700 environment prosecutions a year brought by the Environment Agency.
Last week I met up with prosecutors from the Southern, Midlands, Thames and Anglia Regions. And I had the opportunity to go out with them to look at some sites, which are current cases.
We need to remember the downright criminality, menace to people’s quality of life and danger to health of some polluters. Those who fill waste sites with household refuge. So the people who live in the nearby homes will soon be told that the drinking water from the local boreholes has filtered into the chalk through used nappies, condoms, batteries and household waste trucked down from London. Or the row of cottages I saw which overlook an illegal waste site which by day is filled up by lorries and by night sees toxic clouds billow from huge open-air fires of tyres, chemicals and plastics. I thought I was seeing double when two skip lorries roared past with the same number plate. We’re not talking here of honest businesses inadvertently creating technical breaches of complex regulations. We’re talking about environmental offences, which are lucrative criminality and which make people’s lives a misery. And the Environment Agency prosecutors are there to take these cases to court to protect the local community and deter further offences.
But all of them believe – and I know there is wide agreement about this – that the law in this area could be improved.
Opportunity for reform
There are four ways it could be improved for all concerned.
Firstly, the law should give the local community a voice – it’s their air and water or view – and sometimes their jobs, which are at stake.
Secondly, the courts should be able to deal with environmental offences with some consistency. It’s hard for magistrates to get it right. There are 28,000 magistrates and most will only come across, in the course of their duties, one of the 700 cases a year brought by the Environment Agency. And nor are they able to look to specialist advice from Bench Legal Advisers or refer to a guideline case indicating a tariff for environmental offences.
And thirdly, the law should deal differently with those on the one hand who commit technical breaches – and who need to get themselves in order but who don’t need the force of the criminal law.
And those on the other who make big money knowingly causing horrible damage to people’s neighbourhood and get away with paltry fines because they’ve put their business into liquidation as they pause before they start up yet others.
And fourthly, the court should have a more flexible range of penalties to order when someone is guilty of an environmental offence. Just as we have expanded the range of penalties for those committing offences such as assaults – to include drug treatment and testing orders and conditional cautions. So we should have more than just fines and imprisonments when dealing with those who commit environmental offences.
There have been many significant reports and committees considering these issues. And I think the time has come – if we can reach agreement between all those involved – to make some changes in the law and in its practical implementation.
Elliot Morley – as DEFRA minister - has the lead on this and therefore what I say is just by way of throwing ideas into the pot. But it seems to me we could make progress in these 4 areas.
The prosecutions for environmental crime are conducted by the Environment Agency prosecutors in the public interest – and in the interest of the local community. But the local community has no direct role in the proceedings. When sentencing in criminal cases such as assault, the courts expect to see and may take into account a Victim Impact Statement. Perhaps, in environment cases, there should be a Community Impact Statement presented to the court by the local councillors or the local residents association. And the courts could hear oral evidence of community impact. And there is scope to go further. The local community could be joined as a party to the proceedings – with the leave of the court.
I think community engagement is enormously important. It is, after all, on behalf of the community that the Environment Agency is acting. The environment belongs first and foremost to the local community. They need to be more than just helpless bystanders – or grateful beneficiaries of Environment Agency action. They need to be empowered as part of the system to protect their environment. That will also demonstrate the legitimacy of environmental prosecutions and show them for what they are – not technical over-regulatory action in the cause of an ideological commitment to the environment, but protection for people’s most basic quality of life. Who cares most about the raw sewage escaping when a water company broke the rules? The family whose chickens were killed as the sewage swept into their garden, of course. The government wants communities to be strengthened and to have more powers to act together to improve life in their area. This would fit well with that agenda.
And it is because of the importance of community engagement in, and transparency of, environment proceedings that I do not favour a change to new specialist environmental tribunals. People feel they’ve got some idea about what goes on in their local magistrates or Crown Court. And they know they are acting in the public interest – rather than private law. But I don’t think they have a clue what’s going on in tribunals – which they feel are places for resolving private disputes, and though they sit in public they are wholly remote from most people.
Expert courts and consistency in sentencing in environment cases
We could achieve the necessary level of expertise and consistency without creating separate Environmental Tribunals if we introduced some changes in the way courts handle environment offences. There could be a ticketing system – so that some magistrates had special training and were accredited to take environment cases. Or, there could be a specialist cadre of bench legal advisers who could – in addition to their normal duties - be peripatetic and take environment cases.
Consistency of sentencing would also be assisted if there were guidelines which included guidance on tariffs – or if the Sentencing Guidelines Council could add to the advice of the Sentencing Advisory Panel on principles by adding some numbers. For example, in rape cases the court have the benefit of the leading case of Millberry which not only sets out the aggravating features that the court should look for but also assists them by laying down numbers. So that in a contested rape case the starting point should be 5 years; with the aggravating features of more than one offender committing the rape or the offender being in a position of responsibility for the victim it is 8 years and then with further aggravating features – such as a campaign of rape – it goes up to a starting point of 15 years. Of course, every case has to be judged and sentenced on its own facts, but there is a clear precedent in the criminal justice system for such clear and helpful guidance.
Different procedures for regulatory breach and major pollution
At each end of the spectrum it is easy to differentiate between those who are hardened criminals and those who are good corporate citizens who have inadvertently breached regulations where the breach has harmed no-one.
The courts will be better able to understand the misery caused by the hardened criminals with the assistance of community impact statements. But what of those who have breached regulations, who need to clean up their act but who at heart are good corporate citizens? Currently they are either prosecuted in the criminal courts or are left with just a warning. Regulatory breach could, perhaps, better be dealt with by establishing penalties on the civil standard of proof, which could either be applied for by the Environment Agency or imposed by the Agency and subject to appeal to be heard in the courts.
A wider range of penalties
Even for assaults and robberies – fines and imprisonment have long been considered too narrow a range of options. And that is even more the case for dealing with environmental offenders.
Courts can be reluctant to, or find it difficult to, fine the offender the full cost of the clean up of the environment. It may be that a big fine will just put out of work innocent employees of the business. Or it may be that the business has salted away its assets. And courts are reluctant to imprison for environmental offences.
And the local community – who have been most affected by the offending – gain nothing from a fine or imprisonment.
In Scotland, the deferring of sentence affords the environmental authorities the opportunity to engage the environmental offender in positive action to clear up the problem and improve the area. On return to court for sentencing the prosecution authorities can then explain what the offender has done to help the local environment and ask for a conditional discharge. But such flexibility is not currently used in environmental offences in courts in England and Wales.
What about the possibility for the court to order the offender to clean up the mess they have caused? What about empowering the court to order an Environmental Improvement Order – in consultation with the local community to identify some work, which need so to be done and then order it? Local communities would see the benefits if local business agreed as part of their sentence to clear waste land and put up goalposts, or establish and service recycling bins in the local car-park
So I think we could make the law work better to deter environmental offences to ensure compliance with environmental regulation and bring local communities into the partnerships which operate to protect their environment.
And I think we can give the courts better sentencing options.
Certainly we need to make progress to anticipate the European Environmental Liability Directive and the Aarhus Convention.
We need to reach agreement on the way forward. That includes those who are the subject of regulation as well as those in whose interests the regulations operate.
But if we map a sensible way forward, based on a sound critique of the current system with positive proposals for reform – I believe the DEFRA, with the support of the Environment Agency, can take forward progress.