Harman calls for greater community power in environmental sentencing

Solicitor General Harriet Harman QC MP has called for significant changes to the law to allow communities affected by pollution a greater role in legal proceedings against polluters, as well as a more flexible range of penalties for courts to impose on those found guilty of environmental crime.

In an address to the Southwark Environment Forum this week, Ms Harman said there were four main ways in which the law could be changed to improve outcomes and justice for communities affected by environmental crimes and breaches of regulations, by giving the community a voice, introducing expertise in magistrates, differentiating between criminal behaviour and technical breach of operating rules, and introducing a flexible range of penalties for those found guilty.

First and foremost, the community should be given a voice in the legal proceedings: “It is, after all, on behalf of the community that the Environment Agency is acting,” she said.

In this, Ms Harman compared the legal procedures of environmental crime with those of criminal cases such as assault, where the courts take into account a Victim Impact Statement. She suggested that, in environment cases, there could be a community impact statement presented to the court by the local councillors or the local residents association so that oral evidence of community impact could be heard.

“That will also demonstrate the legitimacy of environmental prosecutions and show them for what they are – not technical over-regulatory action in the cause of an ideological commitment to the environment, but protection for people’s most basic quality of life. Who cares most about the raw sewage escaping when a water company broke the rules? The family as the sewage swept into their garden of course.”

“The Government wants communities to be strengthened and to have more powers to act together to improve life in their area. This would fit well with that agenda,” she said.

Secondly, she called for greater expertise and consistency in the courts ability to deal with environmental offences by introducing a few changes to the way courts handle procedure, saying most magistrates had little experience or expert advice available on environmental matters.

“There could be a ticketing system – so that some magistrates had special training and were accredited to take environmental cases. Or, there could be a specialist cadre of bench legal advisers who could – in addition to their normal duties – be peripatetic and take environment cases,” Ms Harman said.

The consistency would also be assisted if there were guidelines and guidance on tariffs could be given from the Sentencing Guidelines Council so that minimum sentences could be established.

When sentencing is being considered, courts should also take into account the difference between those who are hardened criminals and those who are “good corporate citizens who have inadvertently breached regulations and where the breach has harmed no-one.”

“The courts will be better able to understand the misery caused by the hardened criminals with the assistance of community impact statements. But, what of those who have breached regulations, who need to clean up their act but who at heart are good corporate citizens? Currently, they are either prosecuted in the criminal courts or left with just a warning. Regulatory breach could perhaps, better be dealt with by establishing penalties on the civil standard of proof, which could either be applied for by the Environment Agency or imposed by the Agency and subject to appeal to be heard in the courts,” she said.

This could be complimented by introducing a more flexible and wider range of penalties for regulatory breaches as courts can often be reluctant to fine the offender the full cost of the clean up of the environment.

“It may be that a big fine will just put out of work innocent employees of the business. Or it may be that the business has salted away its assets, and courts are reluctant to imprison for environmental offences. And the local community, who have been most affected by the offending, gain nothing from a fine or imprisonment,” Ms Harman claimed.

She compared this to the situation in Scotland where the deferring of sentences allows the environmental authorities time and opportunity to engage the offending company in positive action to clean up the problem and improve the area. After this, when the offender returns to court, the prosecution can explain what the offender has done to help the local environment and ask for a conditional discharge.

Ms Harman then went further and raised other possibilities for dealing with regulatory offenders: “What about the possibility for the court to order the offender to clean up the mess they have caused? What about empowering the court to order an Environmental Improvement Order – in consultation with the local community to identify some work which needs to be done and then order them to do it? Local communities would see the benefits if local business agreed as part of their sentence to clear waste land and put up goalposts, or establish and service recycling bins in the local car-park.”

In conclusion, Ms Harman made the point that whatever changes are made on the costs rules, above all else the law needs to be enforceable in the public interest so that the state can take action.

“Our approach, I believe, should be to recognise the importance of effectively enforcing laws on environmental protection because that is in the public interest as well as in the interests of the individual – who is always going to be in a weaker position than the state when it comes to taking action against wrongdoers. If it should be done and it’s in the wider public interest, then it’s a cop out for the state to leave it to the individual, she said.”

“I think we could make the law work better to deter environmental offences to ensure compliance with environmental regulation and bring local communities into the partnerships which operate to protect their environment.”

By David Hopkins

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