The Environment Agency and Ministers have complained repeatedly that fines for environmental offences are too low to act as a deterrent. The new study, carried out by consultants ERM, was intended to provide evidence to inform possible action to improve the consistency and proportionality of sentencing.
The report adds to a growing body of research which is pointing to a fundamental rethink about the structures and processes of environmental law in Britain. Recent DEFRA-sponsored studies have considered the case for an environmental tribunal (ENDS Report 341, pp 3-4 ), proposals for civil fines for environmental offences (ENDS Report 346, p 7 ) and the adequacy of current arrangements for access to justice (ENDS Report 345, p 6 ).
ERM found considerable difficulty in gathering full and consistent data on sentencing and court practices. Information on prosecutions brought by local authorities is particularly patchy, and is not included in the overall figures.
The research gathered information on fines and sentences in England and Wales between 1999 and 2002. Areas covered included industrial pollution control, water pollution, waste management, statutory nuisances, contaminated land and hazardous substances and installations. Wildlife offences were also investigated.
ERM identified 6,283 offences in the four-year period. Over 90% of the prosecutions were brought by the Environment Agency.
The total number of offences has increased steadily. The Crown Courts ruled on 48 offences in 1999 rising to 252 in 2002, while the number before magistrates rose from 798 to 1,550.
Custodial sentences were imposed for just 1.2% of offences, while 68% resulted in fines. More than 80% of offences involving companies resulted in a fine.
Sentencing guidelines for magistrates were issued in 2001 and reinforced by guidance from the Magistrates Association in late 2002 (ENDS Report 335, p 55 ). ERM suggests this may have come too late to have a clear impact in the period covered by the survey.
However, ERM conducted a limited case study at one magistrates' court in the south-east of England which suggests that the guidelines are not fully accepted. Fewer than a quarter of the 32 magistrates surveyed appeared reasonably aware of the guidelines - and more than one third were unaware of them.
The study confirms that magistrates have a very low level of exposure to environmental offences. Such cases typically accounted for just half a dozen of the 3,500 cases heard in the case study area each year - which is covered by 149 magistrates.
ERM found that the trend is the same even when abnormally large fines, which could distort the picture, are set aside. The number of custodial sentences also fell sharply after a peak in 2000.
The consultants speculate that magistrates may have been referring a greater number of less serious cases to the higher courts. They suggest that guidance on sentencing for environmental offences could be developed for the Crown Court.
The highest average fines were imposed in London and Eastern England, at £4,800 and £3,600, respectively - two of the areas with the lowest number of offences. In contrast, fines in Wales and the North-East averaged just £1,650 and £2,000 - though these two areas accounted for over one-third of all prosecutions.
The variability is particularly acute in the Crown Courts. In Wales, which accounted for a quarter of the 692 cases brought to Crown Court, the average fine was a paltry £1,874. In contrast, the 18 offences heard in London's Crown Courts attracted an average fine of £52,167.
The willingness to impose fines also varied sharply. In the West Midlands, the Crown Courts imposed a fine for only 24% of offences - although offenders in the region had a relatively high chance of ending up with a custodial sentence.
Magistrates awarded costs in a fairly constant 72-74% of cases. Again, however, the Crown Courts appear to be showing increasing sympathy for defendants. While costs were awarded in 81% of cases in 1999, the figure fell to just 42% in 2002.
Local authorities appear to be carrying out few prosecutions. Over the last 4.5 years, 23% of respondents brought no prosecution, and 27% fewer than five. Lack of time, resources and legal support were widely cited as the main barriers to prosecution.
Donald Macrae, DEFRA's head of legal services, expressed cautious interest in many of the recent proposals for legal reform. However, he stressed, other Departments would need to be convinced that "environmental issues are sufficiently distinctive to justify separate treatment within the justice system."
Mr Macrae accepted that the complexity of environmental law strengthened the case. However, he questioned "whether that means we automatically need a new institution such as a tribunal" - and cautioned that "lawyerification" of any tribunal system could remove some of the apparent benefits. Instead, he suggested that expert assessors could be appointed to help courts in environmental cases.
In public at least, DEFRA insists that current arrangements should satisfy the 1998 Aarhus Convention's
requirements on access to environmental justice. Many environmental lawyers disagree - and the UK's ongoing failure to ratify the Convention suggests that their concerns are shared within Whitehall.