After a year of significant change in the sentencing of environment related crimes the Environment Agency is considering a scheme to give victims of environment related crime in England a formal avenue to review decisions not to prosecute.
There has been plenty of diverse legal activity recently relating to how environment related crimes are punished. For instance there have been dramatic increases in the level of fines for certain breaches of environment law (upheld recently by the Court of Appeal – see our earlier article here). On the other hand the Environment Agency announced earlier in the year that it was to widen the use of enforcement undertakings to include breaches of the Environmental Permitting Regulations.
The proposed scheme related to the victims of environment related crimes has been introduced to implement the EU Victims Directive 2012 (Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime). In the scheme as proposed by the Environment Agency third party victims of environment related crimes in England would have the opportunity to challenge a decision by the Environment Agency not to take criminal proceedings against an offender.
The Environment Agency first announced that they were considering the position of victims to delegates at the UCL Conference on Effective Enforcement of Environmental Laws in March 2015 with more recent developments being covered by ENDS report online.
There are several aspects of the scheme which still need developing, including in particular who would be considered a victim in cases of environment related crimes. The Environment Agency is in talks with the Ministry of Justice to ensure that any scheme is compliant with the Aarhus Convention on access to information in decision making and justice in environmental matters.
The rest of the UK
It is not clear yet whether a similar process (or other process) will be developed in Scotland, Wales and N Ireland.
There are probably very few people who object to the principle that the impact on, and views of, victims of crimes ought to be taken into account and it would be strange to think that this should be any different in the case of environment related crimes. However in terms of environment related crimes there may be difficulties in determining exactly who is a victim. Of course the mere presence of such a difficulty is nothing new to law. An enduring characteristic of law is its adaptability and flexibility to new issues. However it could take time for this point to become clear and in the meantime, at least in theory we could see more complexity arising over the decision making process of the Environment Agency. Indeed it is conceivable that satellite disputes and delay over the decision making process could arise especially in cases where it is borderline whether the Environment Agency would prosecute or perhaps also where there is a likelihood that civil cases for loss and damage might be expected to follow.
With thanks to Isabella Kaminski of the ENDS Report.