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ENVIRONMENTAL CIVIL PENALTIES. A More Proportionate Response to Regulatory Breach. Michael Woods Senior Associate Stephenson Harwood michael.woods@shlegal.com www.ucl.ac.uk/laws/environment/civil-penalty/. What is a Civil Penalty?. The traditional civil/criminal distinction

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environmental civil penalties

ENVIRONMENTALCIVIL PENALTIES

A More Proportionate Response to Regulatory Breach

Michael Woods

Senior Associate

Stephenson Harwood

michael.woods@shlegal.com

www.ucl.ac.uk/laws/environment/civil-penalty/

what is a civil penalty
What is a Civil Penalty?
  • The traditional civil/criminal distinction
  • Crime and punishment
  • “A middle system of law”
  • What it is not...

A discretionary monetary sum, imposed flexibly under civil law, achieving deterrence and reparation

Civil

Penalty

regulatory difficulties

Regulatory Difficulties

Current

Compliance through discretion and consensus, but…

Over-reliance on criminal prosecution and strict liability

Trivialisation of offences and inadequate fines

Regulator reluctance to enforce?

Optimal

A more proportionate and responsive approach to regulation

current use of civil penalties abroad
Current Use of Civil Penalties Abroad
  • “Second order violations”
  • Benefits recapture
  • BEN and SEPs
  • “Inflation” of the criminal law
  • Ordnungswidrigkeiten
  • The Öztürk case

Germany

USA

current use of civil penalties in the uk
Current Use of Civil Penalties in the UK
  • Variety of models – growing interest
  • Limitations of fixed penalties – inflexible
  • OFT – CA 1988 and CAT
  • Human Rights – Article 6 “criminal charges”
benefits from environmental civil penalties
Benefits from Environmental Civil Penalties
  • Preserves the value of the criminal law
  • Relieves pressure on regulators’ resources
  • Improved understanding and compliance
  • Ability to target financial gains and losses
  • Addresses increased public expectations

Greater

Flexibility

Better match between the sanction and moral/financial costs of the offence,leading to improved compliance

Result

a possible model
A Possible Model

Who?

  • Environment Agency

What?

  • IPPC, waste and water

How?

  • Discretion
  • Appeals

When?

  • Initial limited use
  • Later review and extension
report conclusion
Report Conclusion
  • Current system: room for improvement
  • Experience of civil penalties: pragmatic and effective
  • Regulators and regulated: potentially favourable

Outcome

Better regulation and a better environment

reactions
Reactions
  • Environment Agency
  • Environmental Audit Committee
  • Government (BRTF)
  • Defra
  • Hampton Report
  • New legislation - Clean Neighbourhoods and Water Industry

UKELA?

Model? Industry/NGO/public feedback? Lobbying?

issues for discussion
Issues for Discussion
  • Regulatory fit –alternative or replacement?
  • Type of offences –low-level and/or high level?
  • Which regulator(s) – EA, EN, local authorities
  • Assessing penalty – standard tariff and/or discretionary factors?
  • Limits on discretion – statutory cap? not > criminal fine?
  • Means of appeal – Magistrates, SoS, ET? plus limited JR?
  • Which parties liable – companies, individuals, directors?
  • Resources – additional funding and/or hypothecation?

Consensus?

On the principle? On the detail?

environmental civil penalties11

ENVIRONMENTALCIVIL PENALTIES

A More Proportionate Response to Regulatory Breach

Michael Woods

Senior Associate

Stephenson Harwood

michael.woods@shlegal.com

www.ucl.ac.uk/laws/environment/civil-penalty/