Environmental
law
Enforcement
through
civil
proceedings
by
Richard
Burnett-Hall
24
Environmental
legislation
in
the
UK
consists
largely
of
prohibitions,
which
may
be
disapplied
by
a
licensing
regime.
Non-compliance
is
almost
invariably
a
criminal
offence
of
strict
liability,
requiring
no
mens
rea.
This
approach
can
be
traced
back
to
cases
such
as
R
v
Stephens
[1866]
LR
1
QB
702
which were
based
in
public
nuisance,
where
likewise
mens
rea
is
not
relevant.
Justification
was
given
by
Lord
Salmon
in
Alphacell
v
Woodward
[1972]
AC
824 where
he
said:
'The
offences
created
by
the
[Rivers
(Prevention
of
Pollution)
Act
1951]
seem to
me
to
be
prototypes
of
offences
which
'are
not
criminal
in
any
real
sense,
but
are
acts
which
in
the
public
interest
are
prohibited
under
a
penalty'
...
If
this
appeal
succeeded
and
it
were
held
to
be
the
law
that
no
conviction
could
be
obtained
under
the
Act
of
1951
unless
the
prosecution
could
discharge
the
often
impossible
onus
of
proving
that
the
pollution
was
caused
intentionally
or
negligently,
a
great
deal
of
pollution
would
go
unpunished
and
undeterred
to
the
relief
oj
many
riparian
factory
owners.
As
a
result,
many
rivers
which
are
now
filthy
would
become
filthier
still
and
many
rivers
which
are
now
clean
would
lose
their
cleanliness.
The
legislator
no
doubt
recognised
that
as
a
matter
of
public
policy
this
would
be
most
unfortunate.
Hence
s.
2(I)(a)
which
encourages
riparian
factories
not
only
to
take
reasonable
steps
to
prevent
pollution
but
to
do
everything
possible
to
ensure
that
they
do
not
cause
it.
'(my
emphasis).
Strict
liability
is
also
a
necessary
element
of
the
polluter
pays
principle.
If
an
economic
activity
causes
social
costs,
this
principle
requires
the
operator
to
bear
those
costs
in
full
at
least
in
the
absence
of
consent
by
the
victims,
or
where,
in
the
wider
public
interest,
this
is
deemed
to
be
made on
their
behalf
and
there
is
a
licensing
regime
in
operation.
Considerations
of
intent,
negligence,
or
'
o o
'
any
other
blameworthiness
have
no
place.
The
European
Commission
in
its
green
paper
Remedying
Environmental
Damage
specifically
stated:
'strict
liability
appears
to
be
particularly suited
to
the
specific
features
of
repairing
environmental
damage'
and this
view
was
supported
by
the
report
on
this
green
paper
by
the
House
of
Lords
Select
Committee
on
the
European
Communities.
CRIMINAL
CONTEXT
Strict
liability
is
therefore
appropriate
to
environmental
enforcement.
Nevertheless,
it
sits
most
uneasily
in
the
context
of
the
criminal
law,
not
only
as
a
matter
of
principle
but
also
on
purely
practical
grounds.
It
is
clearly
wrong
in
principle
that
a
person
can
be
convicted
of
a
criminal
offence
in
circumstances where
he
may
never
have
intended
the
consequences
of
his
act
or
omission,
was
not
negligent,
and
indeed
'
o o
'
may
have
done
his
level
best
to
avoid
the
consequences
that
precipitated
the
prosecution
and
conviction.
To
brand
such
a
person
a
criminal
is
bound
to
be
seen
by
most
lay
people
at
least
as
wholly
unreasonable
and
is
liable
to
bring
the
law
and
those
who
enforce
it
into
disrepute.
If
the
fines
were
comparable
to
those
for
parking
offences
(as
they
used
to
be,
and
occasionally
still
are)
this
consideration
would
carry
less
weight;
but
with
the
magistrates
now
able
to
impose
fines
of
up
to
£20,000
and,
in
many
cases,
unlimited
fines
and
prison
sentences
available
on
convictions
on
indictment,
the
anomalous
nature of
strict
liabilitv
for
such
criminal
offences
cannot
be
lightly
disregarded.
There
are
also
cogent
practical
grounds
for
this
concern.
To
avoid
o
convicting
a
defendant
on
a
criminal
charge
unfairly,
he
is,
quite
rightly,
afforded
a
whole
range
of
evidential
and
other
procedural
safeguards,
notably
the
appreciably
heavier
criminal
burden
of
proof.
This
protection
inevitably
means
either
that
there
are
more
acquittals
than
would
otherwise
be
the
case
or
no
doubt
much
more
often
that
proceedings
are
never
brought
in
the
first
place.
The
adverse
consequences
for
society
at
large
if
actions
that
damage
the
environment
are
not
seen
to
be
condemned,
and
recurrences
effectively
discouraged
are,
however,
ignored.
While
the
reluctance
of
the
regulators
in
Britain
to
bring
prosecutions
is
in
part
attributable
to
a
culture
that
avoids
confrontation
to
a
degree
that
some
might
regard
as
excessive,
it
is
o
o
'
understandable
that
they
should
regard
proceedings
that
fail
as
counter-
productive.
STRICT
LIABILITY
It
is
clearly
wrong
in
principle
that
a
person
can
be
convicted
of
a
criminal
offence
in
circumstances
where
he
may
never
have
intended
the
consequences
of
his
act
or
omission,
was
not
negligent,
and
indeed
may
have
done
his
level
best
to
avoid
the
consequences
that
precipitated
the
prosecution.
WHO
IS
RESPONSIBLE?
The
problem
is
perhaps
most
acute
in
circumstances
where the
separate
actions
of
two
or
more
people
have
together
resulted
in
a
pollution
offence,
o
r
7
and
yet
it
is
just
such
situations
that
increasingly
arise.
Constructive
o
J
collaboration
between
two
or
more
parties
is
frequently
called
for,
e.g.
in
the
duty
of
care
in
dealing
with
waste,
the
discharge
of
trade
effluent to
a
sewage
treatment
works,
or
the
use
of
sub-
contractors
to
do
work
that
calls
for
an
appreciation
of
all
the
surrounding
potential
environmental
hazards.
In
such
