The Air Quality (Domestic Solid Fuels Standards) (England) Regulations 2020 (‘the regulations’) are made under section 87 of the Environment Act 1995, and they make provision restricting the sale of certain solid fuels, and provide...
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Environmental law investigations & prosecutions
Stephensons has a team of specialist regulatory lawyers who provide advice and representation to individuals and businesses facing environmental investigations and prosecutions by the Environment Agency (EA) and local authorities. Our specialist regulatory lawyers understand the pressure on companies to ensure strict compliance with a wide range of laws, including environmental. Breaches of these laws can lead to significant financial penalties and in the most serious of cases, custodial sentences, as well as adverse publicity.
It is therefore important to protect your business and reputation with advice from a specialist before you take any action. Defending you and your business is our primary concern. If you require assistance, please contact our environmental lawyers on 0161 696 6250. Alternatively, please complete our online enquiry form and a member of the team will contact you directly to discuss your case.
Environmental law is complex and constantly changing and businesses must negotiate their way through this plethora of legislation to ensure they operate lawfully. Breaches can be costly both in terms of financial penalties and adverse publicity so it is important that businesses are pro-active in seeking advice, and respond quickly in the event of an incident.
Environmental legislation has evolved at a rapid pace over recent years and there is a strict framework in place to protect the environment. It is now more important than ever to keep abreast of key changes to the law so as to minimise the risk of non-compliance. Whilst some businesses have an obvious potential to impact upon the environment, many others who do not fall into this category find themselves facing enforcement action. This may be following an environmental incident, such as water pollution, or due to non-compliance with complex waste or permitting regulations.
The EA is the primary regulatory body and enforces the legislation in a variety of ways, ranging from civil penalties which it administers directly, to prosecution where the criminal courts decide the appropriate penalty.
The sentencing powers for courts dealing with environmental cases have increased over recent years, and most offences now carry significant fines and the potential for imprisonment of directors. The EA can also apply for ancillary orders following a conviction. The court imposes these and they can include the disqualification of a director and confiscation of assets under the Proceeds of Crime Act 2002, both of which can have devastating consequences for a company.
How can we help you?
Due to the vast amount of environment legislation, there are a wide range of offences which you could commit in the event of non-compliance. At Stephensons we help individuals and businesses in respect of such offences, including:
- Carrying on a regulated activity without an environmental permit
- Failure to comply with the conditions of an environmental permit
- Failure to register as an authorised waste carrier/broker
- Unauthorised or harmful deposit, treatment or disposal of waste (fly-tipping)
- Improper disposal of chemicals and dangerous substances
- Illegal discharges to air, land and water
- Statutory nuisance offences, including noise nuisance
- Contaminated land
- Breaches of the Packaging Waste Regulations
- Failure to comply with notices and sanctions
Our specialist team of environmental lawyers act for a wide range of individuals and businesses nationwide in relation to the following:
- Applications for environmental permits (Part A and Part B)
- Appeals to the Planning Inspectorate against permit decisions including: refusal of a permit; variation notices; enforcement notices; revocation notices; suspension notices and prohibition notices
- Initial investigations by the EA or a local authority, including advice and representation at interviews under caution (known as PACE interviews)
- Criminal investigations and prosecutions, including representation at court
- Ancillary orders to prosecution, including disqualification of a director and confiscation of assets under the Proceeds of Crime Act 2002
- Civil sanctions, including fixed and variable monetary penalties; compliance notices; restoration notices; and stop notices
- Appeals to the First-tier Tribunal (General Regulatory Chamber) against civil enforcement sanctions
Environmental legal representation
If you or your business are facing an investigation or prosecution by the EA or a local authority, you need to act quickly to limit both the financial and reputational impact. You need the support of a specialist lawyer to guide you through the process and protect the interests of you and your company. Our specialist regulatory lawyers can advise you on the appropriate defence strategy and provide effective representation at each stage of the proceedings.
It is important that you seek advice at the outset of an investigation. In particular, you should always seek specialist advice before agreeing to attend an interview under caution with the EA or a local authority. These interviews can have serious implications and may give rise to criminal prosecution. Our specialist environmental lawyers can advise you on the correct approach to take to protect your interests, whether that be making written responses to questions under caution or by providing robust and specialist representation at an interview under caution.
It is also important to note that if you are convicted of an environmental offence and are the holder of an environmental permit, the EA may review and reconsider your competence to hold that permit. The EA may give you time to prove your competence or suspend or revoke your permit. A conviction is also likely to have implications on any current or future permit applications.
Wherever possible our environmental lawyers operate on a fixed fee basis. We will provide you with a clear indication of our fees at each stage of proceedings, including: initial reviews and advice; interviews under caution; preparation of legal representations; and representation at court. This allows clarity and certainty on costs whilst your case is ongoing. In the event that we cannot offer a fixed fee, we will provide you with a clear indication of what our fees will be for each stage of your case and provide you with regular updates.
Frequently asked questions
Who regulates environmental legislation?
There are a number of environmental regulators in the UK, including the Environment Agency (for England); Natural Resources Wales; the Scottish Environment Protection Agency; and the Northern Ireland Environment Agency.
Other regulators include Natural England; the Marine Management Organisation; the National Measurement Office; and the Departments for Environment, Food and Rural Affairs; Energy and Climate Change; and Enterprise, Trade and Investment.
Local authorities also have their own environmental health departments to assist in the enforcement of environmental regulations, including the regulation of emissions and air, water and land from smaller industrial plants and collecting and disposing of municipal waste.
What happens if I am investigated?
Where the EA, local authority or another regulator suspect that an environmental offence has been committed, they will carry out an investigation. The EA prioritise and pursue investigations which involve serious environmental harm or harm to human health; organised crime; overt criminal activity; substantial illegal gain; threats of violence; and other aggravating factors.
Where the relevant regulator has grounds to suspect that you/the company have committed an environmental offence, they will usually invite you to attend an interview under caution (also known as PACE interviews). The purpose of this is for the regulator to put their case to you and obtain any information from you to assist their investigation. The regulator will then decide what enforcement action (if any) to take.
An interview under caution is a serious matter and it is important that you seek legal advice from the outset. There are usually three main options when dealing with interviews under caution: you can either attend the interview; submit written representations; or decline the invite.
Our specialist lawyers can advise you in more detail in respect of the potential implications of each option and advise as to the best option to protect your interests in the circumstances.
Anything you do say in an interview can influence the course of the investigation and potentially the outcome, so this is a key stage of an investigation where specialist legal advice is vital. Our specialist environmental lawyers can then advise you of the routes available to the relevant regulator to deal with the matter following an interview under caution.
What enforcement action could I face?
Where there is sufficient evidence that an offence has been committed, the enforcement response must be proportionate and appropriate to each situation. The EA’s first response is usually to give advice and guidance or issue a warning to bring an offender into compliance where possible.
However, the relevant regulators can impose civil sanctions or prosecute for more serious environmental offences. The EA have a range of civil sanctions available to use for many of the offences they are responsible for enforcing, including: fixed and variable monetary penalties; compliance notices; restoration notices; stop notices; and enforcement undertakings.
The EA will normally consider all other options before considering criminal proceedings. Generally, prosecution is their last resort. In order to pursue a prosecution, the regulator must be satisfied that there is a realistic prospect of securing a conviction and that it is in the public interest to commence criminal proceedings.
What happens if I am prosecuted?
Most breaches of environmental law are criminal offences, meaning there is usually a real risk of prosecution. However, even where the regulator believes that they could bring a prosecution, they may dispose of the case by way of a formal caution. This is only possible where the offender admits the offence and consents to being cautioned.
Where criminal proceedings are pursued, the penalties are usually a fine and/or imprisonment. However, the scope of the penalty depends on which court the case is tried in. In the Magistrates court, the maximum penalty is usually an unlimited fine and/or six months’ imprisonment. In the Crown court, the maximum penalty is usually an unlimited fine and/or two years imprisonment.
What are the consequences of a conviction?
The EA can also apply for ancillary orders following a conviction. This can include a directors’ disqualification order, whereby the offender can be prohibited from acting as a company director and the confiscation of assets under the Proceeds of Crime Act 2002, where assets equal to the financial benefit gained from the criminal environmental activity are confiscated.
If you are convicted of an environmental offence and are the holder of an environmental permit, the EA may also review and reconsider your competence to hold that permit. A conviction is also likely to have implications on any current or future permit applications.
Local and even national adverse publicity can be a consequence of a prosecution, whether you are convicted or not. The EA publish environmental convictions on their website and local press can observe criminal court proceedings. Other potential implications include increased business insurance premiums and potential difficulty selling the business in the future.
The consequences of an environmental prosecution can therefore be catastrophic for you and your business. Our specialist environmental lawyers can represent you at every stage of the process to either defend or mitigate you and your business’ position as far as possible.
How can I protect myself and my business from enforcement action?
It is important that companies keep up-to-date with relevant environmental regulations to fully understand their obligations and to ensure they operate lawfully. The assistance of an Environmental Consultant may be beneficial to help you achieve compliance. However, even the best run business can inadvertently breach environmental legislation and face the prospect of investigation or prosecution. This may be simply due to an accident which results in pollution to a local watercourse or due to a lack of knowledge of complex, poorly publicised, regulations. A good example of this is the Producer Responsibility Obligations (Packaging Waste) Regulations which, despite being over 15 years old, many companies to whom they apply are blissfully unaware, until they receive a visit from the EA.
Where a breach is unavoidable and you face an investigation, it is important that you are pro-active in seeking advice and respond quickly in the event of an incident, to protect the interests of you and your business.
It is our business to deliver legal services that work for our clients, and you can trust our specialists to take care of things on your behalf.
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