Critically Assess The Effectiveness Of The Criminal Law As A Means Of Protecting The Environment From Pollution.

1426 words - 6 pages

The main function of the criminal law, as a means of protecting the environment, is to reach impartial decisions based on the merits of each case. Environmental law is primarily concerned with human activity and the principal method which is used to regulate these activities is the Command and Control regulatory regime. In addition, each regulatory regime is supported, to a great extent, by criminal law offences. These offences are mainly summary, indictable and "both way" offences and the most serious tend to be related to pollution. Furthermore, they are predominantly offences of Strict Liability. The maximum penalty in the Crown Court is 5 years imprisonment and unlimited fines, and in the Magistrates' Court it is 6 months imprisonment and a £20,000 fine. These offences are, on the whole, inchoate offences and there is no need to prove damage to, or even with, the environment.The criminal law has been used either to grant direct criminal punishment for environmental harm, or in a supplementary role within a regulatory system. However, it seems to be more effective in its supplementary role. This is because the whole objective of criminal law is to punish clearly identified wrongs, but in reference to a lot of environmental matters, it is sometimes impossible to identify the wrong without knowledge of other relevant factors. For instance, it is obviously very appealing to have industry and many other activities which may cause pollution. Nevertheless, the dilemma faced is not a straightforward one as to whether to have them, but a more complicated one of how much pollution is acceptable. Consequently, it will require an assessment of all the various factors involved against what is regarded as reasonable, and a discretionary process like this is perfectly suited for the regulatory system. The criminal law is quite inappropriate for such an assessment, therefore it is predominantly used to handle clear acts of environmental vandalism, or to support the regulatory system after it has decided what is acceptable and what is unacceptable.In 1991, a system of Integrated Pollution Control (IPC) was introduced. This was expected to lead to a number of significant legal challenges to decisions made by the regulator. In reality, however, though there have been quite a lot of IPC prosecutions, there have been very few significant court cases 'at a superior court level on appeal and authorisation issues'. In common with other Command and Control license based regulatory authorities, the IPPC is underpinned by a quite a number of criminal offences. However, these offences are not expected to be used frequently given the huge choice of administrative enforcement powers available to regulators. It is a criminal offence to: operate an IPPC installation without a permit; breach permit conditions; fail to give notice of a permit transfer; fail to comply with an EN or SN; intentionally make false entries in official records.For many years, there has been...

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