DEFRA rapped for 'lacklustre' approach to environmental crime

Ways of improving sentencing for environmental crimes have been put forward by the House of Commons Environmental Audit Committtee.1 They amount to modest rather than radical reform - although there was a rap on the knuckles for the Environment Department for absenting itself from the sentencing debate.

The report is the first in a series. The Committee recently concluded a second inquiry on local environmental crime, is midway through a third on wildlife crime, and has promised a fourth on corporate environmental crime.

The problems aired in the report are familiar, as are most of the proposed solutions. Perhaps the report's most informative passage concerns the response of the Environment Department (DEFRA) to the inquiry.

DEFRA neither offered to present evidence to the Committee nor submitted a written memorandum until late in the day, and then only in response to a direct request.

The memorandum consisted of just seven paragraphs. Remarkably, these dealt exclusively with wildlife crime, even though this represents a tiny fraction of all environmental offences.

The memorandum concluded by claiming that DEFRA is working closely with other Departments and stakeholders "to explore the possibilities of developing an holistic approach to improving access to justice in environmental matters," though this "will concentrate to a much greater extent on civil law than on criminal, where research commissioned by DEFRA suggests there is less to be addressed."

DEFRA's absence from the debate on environmental crime matters because, as the Committee discovered, neither the Home Office nor the Department for Constitutional Affairs are showing any inclination to tackle the limitations of the present system (ENDS Report 349, pp 42-43 ). Likewise, talks between the Home Office and the Environment Agency about ways of dealing more effectively with business environmental crime petered out three years ago.

The report urges DEFRA to "seize the initiative and push forward a bold and radical agenda" to ensure that sentences provide real deterrence and punishment.

Similarly, the Committee calls on the Home Office and Environment Agency to look again at ways of tackling corporate environmental crime, and "ensure that such proposals are quickly cast in a legislative shape upon which Parliament can then come to a decision." The Agency's ideas included corporate bonds, rehabilitation orders and mandatory publicity for a company's convictions (ENDS Report 348, p 31 ).

Echoing other bodies' findings over recent years, the Committee concludes that fines for environmental offences are too low and community sentences are not used often enough. Sentencing practice is too inflexible, especially for offenders who plead poverty or have ample means. Training in environmental law for both magistrates and judges is rare, and the problem is compounded by their infrequent exposure to environmental cases.

The Committee's main recommendations for change cover:

  • Sentences: The statutory maximum fine for most offences is £20,000 in a magistrates court, although few fines actually approach this level. The Committee favours a higher figure, and urges the Government to review the current limits "to see where benefit may accrue from appropriate increases". It praises DEFRA's recent proposal to allow fines of up to £50,000 for repeat fly-tipping offences (ENDS Report 350, pp 48-49 ).

  • Achieving higher sentences: The courts are often reluctant to use their full sentencing powers, with average fines barely exceeding one-eighth of the statutory maximum.

    One contributory factor is a lack of awareness. Last year, a survey for DEFRA found that fewer than a quarter of magistrates were reasonably aware of environmental sentencing guidelines issued in 2001 (ENDS Report 347, pp 10-11 ).

    No such guidelines have been issued for the higher courts, and the Agency's efforts to assist by offering training in environmental matters for judges have got nowhere with the Judicial Studies Board. The report recommends that the Government should "seek to assist" the JSB in seeing the light.

  • Community sentences: Until recently, the only options for the courts were a fine or prison sentence. Community service orders were only available instead of prison sentences, and were rarely used.

    Under the Criminal Justice Act 2003, however, it will now be possible for community sentences to be imposed instead of fines as well. The Committee welcomes this, arguing that "for many forms of environmental crime, compulsory remediation work on the sort of blight for which the offender was himself responsible would be a more appropriate sentence than a fine."

  • Civil penalties: Allowing the Agency to impose a financial penalty on an offender instead of initiating a prosecution would align the UK with the US, Australia and several European countries. The introduction of such civil penalties was advocated in a recent report for DEFRA (ENDS Report 346, p 7 ), and the Agency itself told the inquiry that they would be a "useful additional tool".

    The Committee has not added much momentum to the idea. The report says that "serious thought needs to be given" to areas in which civil penalties might bring benefits - but does not recommend how the matter should be taken forward.

  • Prohibition notices: The Committee looks more favourably at another alternative to prosecution: giving regulators the power to issue prohibition notices which would stop a business from operating where it had committed repeated breaches of regulations, saving them the trouble of going to court. The Health and Safety Executive already has such a power, the report notes, and DEFRA should examine the possibility of extending it into the environmental field.

    This is not the only recommendation in the report which seems less than fully informed. The Agency and local authorities already have powers to serve prohibition notices on regulated industrial processes posing an "imminent risk of serious pollution", and the Agency can also suspend waste management licences where continuation of the activity would cause pollution, harm to human health or detriment to local amenity.

    The Committee's proposal would see these powers extended, but it has scarcely made a case for this to be done.

  • Environmental court or tribunal: Some witnesses advocated the establishment of a specialist environmental court or tribunal - though the idea was opposed by the Magistrates Association and regarded with little enthusiasm by the DCA.

    The Committee dismisses the proposal. A specialist court or tribunal would involve "very considerable cost" to set up, and "would not necessarily deal practically with [environmental] crimes any more effectively than other proposed alternatives."

  • Specialist magistrates: One alternative is to have a corps of specialist magistrates dealing with environmental offences, as in some areas for health and safety offences.

    The Committee greets this idea more favourably. It says: "The Government and other appropriate bodies must look seriously at the proposals for such specialist training on environmental crime and for the establishment of teams of dedicated magistrates. It is clear that without such concentrated experience and expertise the courts will continue to be a lottery often unfavourable to deterrence and proper punishment."

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