Locking up the polluters

On February 9 2007, the European Commission proposed a directive that obliges member states to treat serious offences against the environment as criminal acts and to ensure that they are effectively punished. In serious cases, prison sentences would be available.

The commission’s vice president responsible for justice, freedom and security said: “The proposed directive is crucial to avoid criminals profiting from the existing discrepancies in member states’ criminal law systems which damage the European environment.

“We cannot allow safe-havens of environmental crime inside the EU.”

In 2001, the commission presented a proposal for a directive on the protection of the environment. In 2003, the council adopted a framework decision instead. The commission challenged this decision, and in September 2005 the European Court of Justice annulled it, leaving the way open for this new directive.

The difference between a framework decision and an adopted directive is significant in terms of implementation and enforcement. If the proposal is adopted, member states will have 18 months to implement it.

The background to the proposal is that studies have shown that sanctions currently in place in member states are not always sufficient to implement community policy on environmental protection. Criminal sanctions are not available in all member states for all serious environmental offences. The commission believes that only criminal penalties have a sufficiently dissuasive effect.

An examination of the potential consequences in a case of illegal shipment of waste provides an example of the large range of possible outcomes across the community.

In Spain, there are no criminal sanctions available. At the other end of the scale, Sweden has a maximum sanction of six years’ imprisonment. The UK falls somewhere in the middle with maximum sentences of two years’ imprisonment and unlimited fines.

The intention of the directive is to ensure that all member states criminalise conduct that causes serious environmental damage. And it is to ensure there are similar maximum sentences, including custodial sentences.

The imposition of criminal sanctions shows a different kind of social disapproval compared with administrative sanctions or compensation under civil laws.

A similar argument is often used in support of the introduction of an offence of corporate manslaughter.

Purely financial sanctions may not be an effective deterrent either where offenders have no means to pay or where they have sufficient resources that a fine is little more than an inconvenience. Loss of freedom through prison sentences is a far greater deterrent. Additionally the methods of criminal investigation and prosecution are said to be more powerful than enforcement through administrative or civil law.

The proposed directive identifies areas of conduct that must be classified as serious environmental offences and considered as criminal throughout the community when committed intentionally or with serious negligence.

Participation in and instigation of such activities will equally be considered a criminal offence. The offences will be punished with “effective, proportionate and dissuasive criminal sanctions” including prison sentences where certain aggravating circumstances exist.

Article 2 provides a definition of unlawful as “infringing community legislation or a law, an administrative regulation or a decision taken by a competent authority in a member state aiming at the protection of the environment”.

Article 3 then sets out nine areas of conduct which member states must ensure constitutes a criminal offence when committed intentionally or with serious negligence. Serious negligence is not defined.

All but one of the areas requires the conduct to be unlawful. The exception is where a discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, causes death or serious injury to any person (Article 3a). This will be an offence whether unlawful or not, and depends on the outcome of the conduct not its inherent lawfulness.

The remaining areas of conduct in Article 3 are as follows:

• The unlawful discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants
• The unlawful treatment, including disposal and storage, transport, export or import of waste, including hazardous waste, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants
• The unlawful operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants
• The illegal shipment of waste as defined in Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and Council for profit and in a non-negligible quantity, whether the shipment is executed in a single operation or in several operations which appear to be linked
• The unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants
• The unlawful possession, taking, damaging, killing or trading of or in specimens of protected wild fauna and flora species or parts or derivatives thereof
• The unlawful significant deterioration of a protected habitat
• The unlawful trade in or use of ozone-depleting substances

Article 5 deals with sanctions. Member states will be required to criminalise this conduct if they have not already done so. A criminal provision will always specify a maximum sentence for any specific offence. The maximum sentence for offences contrary to Article 3b to 3h must be at least a sentence of imprisonment of between one and three years where the offence is committed with serious negligence and causes substantive damage to the air, soil, water, animals or plants.

If the conduct is contrary to Article 3a committed with serious negligence, contrary to Article 3b to 3f committed with serious negligence and causes death or serious injury, or contrary to Article 3b to 3h and committed intentionally and causes substantial damage to air, soil, water, animals or plants, then the maximum prison sentence must be specified as at least between two and five years.

At the top end of the scale, maximum sentences must be specified of at least

between five and ten years imprisonment where an Article 3a offence is committed intentionally and causes death or serious injury to a person.

In addition to criminal sanctions, there may be other sanctions or measures including disqualification from engaging in a specified activity, disqualification from being a director and obligations to reinstate the environment.

There will be corporate liability as well as individual responsibility. Corporate liability will occur where offences have been committed for the benefit of the company by someone who has a “leading position” within the company.

This will include cases where a lack of supervision or control has made the commission of an offence possible.

Article 7 sets out the sanctions for companies and uses a similar structure to that set out above. The maximum fine increases with the perceived seriousness of the offence up to a maximum of at least between £510,000 and £1M. The proposed directive also permits a sentencing structure where fines are proportionate to the turnover of the company or to the financial advantage achieved by the commission of the offence.

It can be seen therefore that the directive, if adopted, will ensure a level playing field for individuals and businesses across the member states and remove any perceived safe havens for environmental criminals. The threat of prison sentences for serious environmental offences wherever committed across the European Community is undoubtedly intended to act as a very specific deterrent to those individuals who are not deterred by the existing sanctions.

For some, the cost of damaging the environment will be the loss of their liberty, possibly for a very substantial period of time.

Ian Wilson is from Russell Jones & Walker, Bristol