Let’s all be civil
If there is one topic I find causes confusion for students (as well as aspects and impacts, that is – see my earlier post!) it is civil sanctions – as covered in Element 5, Unit 1 of the NEBOSH Environmental Diploma. It does take some time to get your head around them but, believe me, it will be worth it!
Civil sanctions are an attempt to improve the legal system by introducing a set of sanctions in criminal law that have their heart in civil law. They have been around in England and Wales since 2010, when an order and a subsequent amendment were introduced to make them apply to key environmental acts, such as the EPA, Wildlife and Countryside Act, etc. and regulations, such as those relating to hazardous waste and packaging waste.
What is a civil sanction? I don’t want to overcomplicate things but a sanction for a criminal offence can be either criminal or civil. A criminal sanction tends to be a fine, prison sentence, or criminal notice whereas a civil sanction is much broader. It can cover financial penalties but may also include actions for the clean-up and restoration of the damaged part of the environment. Generally, civil sanctions operate as a more flexible alternative in cases that are heard in a magistrates or Crown court.
Why bother? Civil sanctions were brought in for some very good reasons, described in a report compiled by Professor Richard Macrory called Regulatory Justice: Making Sanctions Effective in 2006.
Firstly, for criminal sanctions, it is a bit ‘all or nothing’; either a warning is issued or a criminal case is taken, leading to what Macrory calls a ‘compliance deficit’. In such a scenario an organisation could be criminally prosecuted, with all the expenses that entails, for an offence that is relatively minor but which requires something more than just a warning letter. Additionally, bringing a criminal prosecution is a very expensive business – lawyers, etc. are not cheap – and this can deter regulators from bringing them. The lack of flexibility has also meant that ‘rogues’ who deliberately flout the law and legitimate businesses who make a small error are treated the same under criminal sanctions.
Criminal proceedings are also largely focused on punishment of the offender and don’t provide any benefit for those who have been affected by an offence, such as the local community. Criminal sanctions are also sometimes not set at a high enough level to act as a deterrent. Basically organisations will carry on with the bad practice, as the fine is paltry in comparison with the cost of compliance.
Civil sanctions are not intended to replace criminal sanctions but to supplement them. They provide the regulator with much more flexibility to apply an appropriate scale, level and type of sanction to the case. This can be in the form of a compliance notice, restoration notice, fixed monetary penalty, variable monetary penalty, third-party undertaking and enforcement undertaking. You can read about these in a lot more detail in Element 5 of the RRC course notes.
An enforcement undertaking is particularly interesting. This is a voluntary agreement whereby a person can take steps to make amends for the criminal non-compliance. Under the laws that introduced civil sanctions it is a requirement for the Environment Agency to publish the enforcement undertakings it has accepted. Figures for the period from 1 May 2013 to 31 October 2013 show that it accepted 17, the majority being for breaches of the packaging waste regulations. They all resulted in a financial contribution of differing scales to various, usually local, conservation trusts and societies.
Civil sanctions sound complicated at first but are, in my opinion, a very good way of dealing with environmental offences. They can be used in the case of lesser offences, leaving the more serious ones to be dealt with via criminal proceedings. As I see it, this is a far better situation than the all-or-nothing warning or prosecution and should, in the long term, lead to a more proportionate environmental legal system.
John Binns BSc (Hons), MSc, MISEP (formerly IEMA)
John Binns BSc (Hons) MSc MISEP (formerly IEMA) is an experienced environmental tutor and consultant