The enforcement of environmental law: civil or criminal penalties?

1 F Harvey ‘Environmental Criminals Face Tougher Fines’ Financial Times
29 November 2004; C Clover ‘Pledge to Decriminalise Environmental
Offences’ Daily Telegraph 29 November 2004.
2 C Dupont, P Zakkour ‘Trends in Environmental Sentencing in England
and Wales’ Environmental Resources Management (2003) 12.
3 HC Environmental Audit Committee Sixth Report ‘Environmental
Crime and the Courts’ (HC 126 Session 2003–2004); R Malcolm
‘Prosecuting for Environmental Crime: Does Crime Pay?’ ELM 14
[2002] 5 289–95; M Watson ‘Offences Against the Environment:
the Economics of Crime and Punishment’ ELM [2004] 16 4 200–04.
4 D Cook, M Roberts and J Lowther The International Wildlife Trade
and Organized Crime: A Review of the Evidence and the Role of the
UK (Regional Research Institute University of Wolverhampton 2002)
31–32. See also J Lowther, D Cook and M Roberts Crime and
Punishment in the Wildlife Trade (Regional Research Institute University
of Wolverhampton 2002); S Oldfield (ed) The Trade in Wildlife:
Regulation for Conservation (Earthscan London 2002).5 Cook (n 4) 29.
6 The fine was £1500. Lowther (n 4) 15, 35.
7 For an interesting account of littering offences see ‘Teenage Dirt
Bag Baby’ (Encams 2004) http://www.encams.org/information/
publications/research/teenagedirtbag.pdf.
8 HC Environmental Audit Committee Ninth Report ‘Environmental
Crime Fly-tipping, Fly-posting, Litter, Graffiti and Noise’ (HC 445
Session 2003–2004).
9 R Savill ‘Graffiti Vandal’s £600,000 Damage’ Daily Telegraph 14
August 2004; Bath Chronicle 23 July 2004. See also M Watson
‘Graffiti: Popular Art, Anti-social Behaviour or Criminal Damage?’
(2004) 168 Justice of the Peace 668–70.
10 HC Sixth Report (n 3) paras 17 and 24.
11 ‘Environmental Crime at the Crossroads: the Intersection of
Environmental and Criminal Law Theory’ (1996) 71 Tulane Law
Review 487–528, at 504. For a different view see RJ Lazarus
‘Assimilating Environmental Protection into Legal Rules and the
Problem with Environmental Crime’ (1994) 27 Loyola of Los Angeles
Law Review 867–91.
12 HC Sixth Report (n 3) Ev 60. See also http://www.bats.org.uk/
BatCrimeReport.pdf.
13 B Webb and B Marshall A Problem-oriented Approach to Fly-tipping
(Jill Dando Institute of Crime Science University College London 2004)
http://www.jdi.ucl.ac.uk/downloads/pdf/JDIFlytippingreport.pdf;
J Vidal ‘Crime Gangs Fuel Explosion in Fly-tipping’ The Guardian 22
September 2004.
14 W Wilson Making Environmental Laws Work: an Anglo American
Comparison (Hart Publishing Oxford 1999) 110.
15 This statement is based on the words of Wright J in Sherras v De Rutzen
[1895] 1 QB 918 at 922. The case concerned a publican who inadvertently
supplied an alcoholic drink to a constable who was on duty.
16 ‘Since regulatory offences are directed primarily not to the conduct
itself but to the consequences of conduct, conviction of a regulatory
offence may be thought to import a significantly lower degree of
culpability than conviction of a true crime’; Tuckey LJ in Davies v
Health and Safety Executive [2002] EWCA Crim 2949.17 Wilson (n 14) 107, 110.
18 M Woods, R Macrory‘Environmental Civil Penalties: A More
Proportionate Response to Regulatory Breach‘(Centre for Law and
the Environment University College London 2003), 2.8. See also P
de Prez ‘Beyond Judicial Sanctions: the Negative Impact of Conviction
for Environmental Offences’ (2000) 2 Environmental Law Review
11–22. This is not a recent development. In the early 19th century
the strict liability offence of public nuisance was occasionally use to
protect the environment and punish those who endangered public
health; R Medley [1834] 2 C & P 292.
19 P de Prez ‘Excuses, Excuses: the Ritual Trivialization of Environmental
Offences’ (2000) 12(1) Journal of Environmental Law, 65–77. See
also H Croall ‘Sentencing the Business Offender’ (1991) 30(4) The
Howard Journal of Criminal Justice 280–97; J Arlen ‘The Potentially
Perverse Effects of Corporate Criminal Liability’ (1994) 23 Journal
of Legal Studies 333–67.
20 HC Sixth Report (n 3) Ev 5.
21 Wilson (n 14) 111.
22 Street-level Bureaucrats and the Social Construction of Environmental
Control’ (1998) 19(6) Organization Studies 953–74 at 959. See
also S Fineman ‘Enforcing the Environment: Regulatory Realities’
(2000) 9 Business Strategy and the Environment 62–72.
23 ‘Environmental Regulators Assaulted and Threatened at Home’
(2003) ENDS Report 338 10.
24 Fineman (n 22) at 67. This has apparently been the case for many
years. See K Hawkins ‘Bargain and Bluff: Compliance Strategy and
Deterrence in the Enforcement of Regulation’ (1983) 5(1) Law and
Policy Quarterly 35-73.
25Wilson (n 14); Woods, Macrory (n 18) ch 4; N Franklin
‘Environmental Pollution Control: the Limits of the Criminal Law’
(1990) 2 Current Issues in Criminal Law 81–94; Z Lipman and L
Roots ‘Protecting the Environment through Criminal Sanctions:
The Environmental Offences and Penalties Act 1989 (NSW)’ (1995)
12 Env and Planning Law Journal 16–36.
26 Twenty-two out of twenty-three in the case of Texas in 1996;
Wilson (n 14) 107.27 A Ogus and C Abbot ‘Sanctions for Pollution: Do We Have the Right
Regime?’ (2002) 14(3) Journal of Environmental Law 283–98.
28Woods, Macrory (n 18) paras 7.9 and 7.10.
29 MA Cohen ‘Criminal Law as an Instrument of Environmental Policy:
Theory and Empirics’ in A Heyes (ed) The Law and Economics of the
Environment (Edward Elgar Cheltenham 2001) 198–216 at 200.
30 Dupont, Zakkour (n 2) 41.
31 Sections 8 and 9 Noise Act 1996. The fixed penalty is currently £100.
32 Ogus and Abbot (n 27) at 288. There are hundreds of prosecutions
for waste offences each year.
33 Fineman (n 22) and Malcolm (n 3) at 295.
34 The calculation of optimal fines for environmental offences is difficult
and controversial. It is much easier to apply optimum deterrence
theory to companies than to individuals. Compare Cohen (n 29)
with S Shavell ‘Criminal Law and the Optimal Use of Non-monetary
Sanctions as a Deterrent’ (1985) Columbia Law Review 1232–262.
35 KF Brickey ‘Charging Practices in Hazardous Waste Prosecutions’
(2001) 62(3) Ohio State Law Journal 1077–144.
36Wilson (n 14) 107.
37 S Hedman ‘Expressive Functions of Criminal Sanctions in Environmental