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The enforcement of environmental law: civil or criminal penalties?

Watson, Michael (2005) The enforcement of environmental law: civil or criminal penalties? Environmental Law and Management, 17 (1). pp. 3-6. ISSN 1067-6058

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    Abstract

    In the United Kingdom, regulatory bodies have traditionally
    relied on the use of the criminal law to protect the
    environment. Although the officials employed by these
    agencies may have regarded it as the ‘last resort’,
    prosecution – or at least the threat of prosecution – has
    always been in the background. ‘Civil’ or ‘administrative’
    sanctions have rarely been used. This situation may be
    about to change.

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    Item Type: Article
    Additional Information: Reproduced by permission of Environmental Law and Management, published by Lawtext Publishing © Lawtext Publishing 2005
    Uncontrolled Keywords: enforcement environmental law civil criminal penalties
    Subjects: G Geography. Anthropology. Recreation > GE Environmental Sciences
    K Law > K Law (General)
    Schools: The Business School
    References:

    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

    Depositing User: Sara Taylor
    Date Deposited: 06 Aug 2007
    Last Modified: 28 Jul 2010 19:20
    URI: http://eprints.hud.ac.uk/id/eprint/339

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