Polluting Event of Churchills

Identify and explain the criminal liability (If any) of each of Brockwells polluting event and that of Churchill’s, and of any individuals involved, under s33 of the Environmental Protection Act 1990 or s85 of the Water Resources Act 1991. What kind of sentences might be appropriate in respect of any guilty parties who are convicted?

Introduction

The approach within this assignment will firstly review the failings of both Fred Churchill (Contractors) Ltd for the unlawful depositing of waste around the city of Nottingham together with the incident which relates to Brockwell and the pollution of the river Trent.

Both cases will be reviewed as under s85 of the Water Resources Act 1991 (the Act). Finally a review of mitigation circumstances with a review of sentences may be appropriate in respect of any guilty parties who could be convicted.

Section 85 of the Act identifies the fact that every person not to cause or knowingly permit polluting substances1 to enter in to a controlled Water. This source is a statutory obligation and is not found in the law of tort. If a company permits an operation on his land which could give rise to pollution then a risk assessment must be completed in order not to fall foul of s85 of the Act2.

Section 85 relates to the keeping of streams free from pollution for the benefit of mankind including flora and fauna. Most significant acts of pollution will arise out of agricultural, commercial or industrial activities.

1 This terminology is not identified with the 1991 Act, for terminologies relating to ‘poisonous’ ‘noxious’ and ‘polluting’ in relation to s85 these may be located within National Rivers Authority v. Biffa Waste Services Ltd [1996] Env LR 227 DC and R v. Dovermoss [1995] Env LR 258 CA (Crim Div).

2 Express Ltd v. Environment Agency [2005] 1 WLR 223 at [24] DC

The damage caused by such pollution may take years to repair and often costs for the clean up process that can run in to millions of pounds. The act of pollution may or may not be a result of negligence and can be caused by a person such as a workman, fitter in a fairly low position of the company.

Brockwell is similar to the case of Empress Car Co (Abertillery) Ltd v. National Rivers Authority [1998]2a, as within Empress, the first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him / her for something which has happened or to make him / her guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which the responsibility is being attributed.

Since Empress, s85 cases that have come before the Court of Appeal have involved other issues rather than the causing offence, some cases have been brought to the Court of Appeal in relation to the level of fine imposed and who was actually criminally liable for the s85 breach. Therefore it is important within Brockwell to identify a suitable level of fine or imprisonment.

2a Empress Car Co (Abertillery) Ltd v. National Rivers Authority [1998] 2 WLR 350; [1998] UKHL 5; [1999] 2 AC 22; [1998] 1 All ER 481. Where Lord Hoffman gave the leading judgement of the Court in which he laid down five key guides for judges and magistrates who might be faced with determining the question of who or what had caused a water pollution incident. A diesel tank within a yard controlled by the company drained in to a nearby river. The tank was surrounded by a bund, but this protection was breached by a pipe to a drum outside the bund.

When someone opened the diesel tap, fuel flowed in to the drum which overflowed causing the pollution. It was held that whether a defendant caused an escape in to a river was not defeated by an additional intervening cause. The question was, had an act been done and did it contribute foreseeably to the escape. Acts of third parties and natural events are not defences to the strict criminal liability imposed by section 85(1) of the Act, for polluting controlled waters unless they are really exceptional events.

The court discouraged too mechanical, an approach to causation. Wolf and Stanley on Environmental Law, Routledge, 5th edition, 2011, pg 148.

Water Resources Act 1991 s85

S85 of the Water Resources Act 1991 (the Act) indicates Civil penalties that may assist in a more effective regulation system and this is likely to be used in areas such as illegal waste disposal. In the area of water pollution there are many grounds for assuming that the importance of criminal prosecutions is set to continue. The Environment Agency has published a detailed prosecution code3, whereas, generally the Agency issues a low level set of fines, therefore it is unusual for custodial sentences to be used.

The use of custodial sentences for environmental harm applies when it is a repeated or blatant offence and where in a public place the offence is such as to subject the public to hazardous substances as in R v O’Brien and Enkel4 or even community orders for polluters as in Environment Agency v UCE Ltd (Ipswich Magistrates Court June 2010)5. This gives rise to the need to consider each case on its own merit rather than using the sentencing advisory panel’s advice.

3 Environment Agency guidance for the enforcement and prosecution policy http://www.environment-agency.gov.uk/business/regulation/31851.aspx

4 R v O’Brien and Enkel [2000] Env LR 156 where illegally storing waste tyres at an unlicensed site gave rise to an eight month prison sentence for O’Brian. On appeal the Court of Appeal quashed the sentence as it was regarded to be too excessive.

5 Environment Agency v UCE Ltd (Ipswich Magistrates Court June 2010) in 2008, A trail of blue-black liquid in Flowton Brook and Belstead Brook, Ipswich, in a series of incidents led Environment Agency officers to an illegal waste site run by Paul Arthur Fenton. They found mixed waste and liquid waste being stored without environmental permits and signs that some waste had been burned nearby.

Ipswich Magistrates’ Court issued a community order requiring Fenton to undertake 240 hours unpaid work and ordered him to pay £8,000 towards Environment Agency costs for breaches of the Water Resources Act, Environmental Permitting Regulations and Environmental Protection Act. http://www.environment-agency.gov.uk/news/117824.aspx accessed June 2010.

There is evidence that Brockwell were negligent in their operation through the actions of their employees and it is not uncommon for the environment agency to proceed with a prosecution for both s85(1) and 85(3) offences, on the proviso that elements of the case can be established.

Within the case of Fred Churchill (Construction) there is a breach of Environmental Protection Act 19906 although not a breach of s85 of the Act, as there is insufficient evidence that the illegal dumping of the removed substance leached or could have leached in to the River Trent.

Areas to be considered within the case of Brockwell

Who will prosecute?

The case of Brockwell will be subject to the Environment Agency (the Agency) bringing a prosecution with respect to s85(1) of the Act for a water pollution incident. Exercising its prosecutable discretion7 the Agency will likely take in to account several factors, which include the seriousness of the incident and any past polluting records from the polluter.

6 Environmental Protection Act 1990

7 Discretion to Prosecute and Judicial Review Hilson, [1993] Crim LR 739

Another area to be considered is the deterrent effect of a prosecution for both would be polluters and the actual polluter. The Environment Agency’s Enforcement and Prosecution Policy8 clarifies that a prosecution will be perused when an evidence test is satisfied and that a prosecution is in the public interest.

Therefore foreseeability is a relevant factor when the Agency is using its common sense to decide whether an individual caused a polluting event, as in NRA v. Wright Engineering Co. Ltd [1994]9 and Alphacell Ltd v. Woodward [1972]10. The importance as to the protection of the environment is demonstrated within Cambridge Water Co v. Eastern Counties Leather Plc. [1994]11.

Therefore in the context of the Brockwell case, the common sense causation is that Brockwell caused the pollution, although it was through the act of a third party (an employee) and therefore the company is liable for a prosecution under s85(1) of the Act.

Alternatively there are cases where the duty of the ‘causation’ rule to take precautions to prevent loss caused by third parties as identified within Stansbie v. Troman [1948]12. The example of Stansbie demonstrates that a common sense answer to the question of causation for the purpose of attributing responsibility under the same rule without knowing such rule cannot be given.

8 Environment Agency Enforcement and Prosecution Policy (November 1998)

9 NRA v. Wright Engineering Co. Ltd [1994] 4 All ER 281

10 Alphacell Ltd v. Woodward [1972] AC 824, 847 a-b

11 Cambridge Water Co v. Eastern Counties Leather Plc. [1994] 2 AC 264, 305f

12 Stansbie v. Troman [1948] 2 KB 48

Therefore is the duty of a s85(1) prosecution includes a responsibility for acts of third parties. It is clear that the liability identified within the Act is strict and therefore it does not require mens rea in the sense of intention or negligence, the offence within this case is that of public nuisance as in Alphacell Ltd v. Woodward.

Nuisance

Is an interference with an occupier’s use or enjoyment of land where there has been substantial injury to property or personal discomfort. This is evident within the Brockwell case, as there is evidence of death fish; this would quite possibly cause a ‘nuisance’ for the local angling population and therefore should be taken in to consideration when summing up of the case is commenced.

The Hoffmann Test – Causation

Within Empress, Lord Hoffmann attempted to encapsulate the law on causation, by providing magistrates’ guidance on s85 prosecutions therefore being able to forestall13 any likelihood of future appeals. The true common sense distinction14 which Lord Hoffmann made between causation and breaking the chain of causation by the defendants acts, omissions or polluting event has been applied to several cases and would be applied in this instance within the case of Brockwell.

13 Journal of Planning and Environment N Parpworth Law 2009, Who may be liable for an offence contrary to s85 of the Water Resources Act 1991

14 Empress [1998] 1 All ER 481 at 491 HL

Causation

The meaning ‘causation’ is well defined within the House of Lords decision in Alphacell Ltd v. Woodward [1972] and within Empress Car Company (Abertillery) Ltd v. NRA [1998]. The test within the Alphacell decision relates to the simple decision on ‘causation’ and requires that the defendant simply carries on with an activity which causes a pollution incident. The courts have repeatedly indicated that the notion of causing is one of common sense.

The decision and subsequent judgement from Lord Hoffman in Empress will be relevant to the proceedings within this case as Lord Hoffman laid down five key guides for magistrates and judges to follow.

Firstly that the court should require that the prosecution identify what the defendant has done to cause the pollution.

Secondly that the prosecution need not prove that the defendant’s actions caused the immediate pollution,

If it is then established that the defendant did do something, it is then up to the court to decide that the defendant did do something to cause the pollution.

The defendant did something which produced a pollution event by the efforts of a third party.

The decision would also take into account whether the pollution act was a normal event or something extraordinary, for example an act by a third party or by a natural event.

If the matter concerned an ordinary occurrence, then a break of the chain of causation would not occur and the defendant would be liable for causing the pollution. Only abnormal or extraordinary events can break the causation chain15.

The chain of causation is evident, as Brockwells employees ignored systems and procedures for the disposal of a chemical by pouring the chemical in to a sluice gate, which flowed in to the controlled water. This would indicate that the companies’ procedural and employee training systems were not well controlled; therefore the company is negligent within its actions. Additionally within Brockwell there appears to be no abnormal or extraordinary events that would have caused the break of the chain of causation.

Negligence

Water pollution is subject to Strict Liability under Common Law, this means that it is irrelevant if the defendant intended to cause the pollution incident. Liabilities for the pollution of groundwater may give rise to an action for negligence or nuisance as in Rylands v. Fletcher LR16, where negligence arises from a failure to exercise the care demand in the circumstances, as a plaintiff must show that he is owed a duty of care, that the duty has been breached and that any harm suffered is due to the breach that the plaintiff is owed.

15 Environmental Law Wolf and Stanley, Cavendish, 4th Edition, Chapter 4 p 141

16 Rylands v. Fletcher [1868] LR 3 HL 330 [1861 – 73] All ER

Damages may be awarded upon proof that the harm caused was foreseeable by the defendant. Negligence would be placed upon Brockwell as the employees poured the chemical in to the sluice rather than disposing of the chemical correctly as per the company’s operational guidelines.

Rylands Rule

The rule in Rylands v. Fletcher is where the land owner is strictly liable for the consequences of escapes from his property and where the land owner is engaged in a ‘non-natural’ use of his land.

Discussion of how the three points within Rylands apply in cases involving water pollution may be found in the land mark decision of the House of Lords in Cambridge Water Co Ltd v. Eastern Counties Leather Plc [1994]16a. This case is likely to have significant impacts in the future development of the law in this area for some considerable time and would be considered within the case of Brockwell.

Acts of third parties including vicarious liability

There is a well established principle within the law of tort that an employer is vicariously liable for the omissions or acts of his / her employees which is committed during the course of their employment.

16aCambridge Water Co Ltd v. Eastern Counties Leather Plc [1994] 2AC 64

Within a criminal context vicarious liability may be found and where it does exist it will be identifiable through the words of an offence creating provision. As within s85 (1) of the Act vicarious criminal liability can be imposed, although the Act does not expressly impose vicarious liability, as in National River Authority v. Alfred McAlpine Homes East Ltd[1994]17.

In the event of substances that escape and pollute controlled waters from a company’s premises, the company cannot escape a conviction for causing a water pollution event by blaming one of its employees who was the cause of the pollution (on proviso that the employee was acting within the terms of their employment – something that will be raised within the BP oil spill within the Gulf of Mexico).

Criminal offences may be divided in to those that require full mens rea and that of strict liability. The definition of strict liability offences is where mens rea is not required in relation to one or even more elements of actus reus.

The defendant company will be held vicarious liable for the acts and omissions from its employees, as identified within NRA v. McAlpine Homes East Ltd [1994], where it was identified that it is not necessary for the prosecution to prove that the managers who control the company were directly involved in the incident.

17 National River Authority v. Alfred McAlpine Homes East Ltd[1994] 4 All ER 286 QBD

Knowingly permitting

It is accepted that it is necessary to prove knowledge as to the circumstances of actus reus. S85(1) and s85(3) of the Act identify offences where actions of companies ‘knowingly permitted’ pollution to controlled waterways. Liability for a company’s knowledge of ‘knowingly permitting’ is identified within the Act yet it still fails to prevent the action. As it is necessary to establish that the defendant knew about the water pollution, this offence is not an offence of strict liability as identified within Schulmans Inc v. NRA [1993]18. The case Price v. Cormack [1975]19 offers a useful insight into an offence of ‘knowingly permitting’.

Discharge

S 85 (3) of the Act identifies the term of ‘discharge’ the identification is more restricted than that of the identification of the ‘entry20’ term. The terminology ‘discharge’ is identifiable with the entry into controlled water by way of means of a pipe, channel or conduit, a substance that pollutes such a water course.

It is not known as if Brockwell holds a discharge consent order, if they had then the subsequent pouring of the chemical in to the sluice would have constituted a breach of such an order which would constitute a breach of strict liability.

18 Schulmans Inc v. NRA [1993] Env LR Div

19 Price v. Cormack [1975] 1 WLR 988

20 Entry is identified within s85(1) and refers to a wide range of scenarios in which polling matter enters controlled waters. The term covers situations where polluting matter is deliberately introduced within controlled water.

Each occasion a breach is identified a s85(6) offence is committed, although if the breach is minor then the Environment Agency is unlikely to prosecute as in Seven Trent Water Authority v. Express Foods Group Ltd [1988]21.

Mitigating circumstances

Whilst it is evident that Brockwell did in fact cause a pollution event in to a controlled waterway, the fact remains that the employees who created the pollution act for the company have been identified and corrective actions have been initiated. These facts should be considered when sentencing is summed up.

If this was the first pollution case for Brockwell, then sentencing should reflect this on off incident. Although if this a subsequent case, then sentencing should reflect a continual failing to control polluting substances therefore issuing a stiffer penalty not exceeding the sentencing guidelines as in s85(6 a,b)22 similar to Robertson v. Dean Foods Ltd Sheriff Court (Tayside, Central and Fife) (Kirkcaldy) [2010]23, a small price for polluting the environment.

21 Severn Trent Water Authority v. Express Foods Group Ltd [1988]

22 On a summary conviction, which is either imprisonment for a term not exceeding three months, or a fine not exceeding £20,000 or both, with the term of imprisonment not exceeding two years.

23 Robertson v. Dean Foods Ltd Sheriff Court (Tayside, Central and Fife) (Kirkcaldy) [2010] GWD 8-139. SEPA officers were alerted to a problem following a call on 19 July 2008 to SEPA’s 24 hour pollution hotline, and on attending the officers saw dead fish, including trout, eels, minnows and sticklebacks.

The source was narrowed down to a discharge point downstream of Redford Bridge. These deaths may have affected fish stocks for some time, as mature sea trout that would have spawned in the autumn were killed, having an impact far wider than the number of dead fish seen at the time.

The exact charge D pled guilty to was on a controlled activity, namely an activity liable to cause pollution of the water environment in that he did discharge chicken slurry into the surface drain at Sheep Pens via the railway drain without the authority of an authorisation under the after-mentioned Regulations; contrary to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 Regulation 5 and 40(1)(a) and the Water Environment and Water Services (Scotland) Act 2003 Section 20(3)(a).” D was fined £3,750

Sentencing

The area of criminal litigation within the field of environmental litigation is ready for a review24 as the case of Environment Agency v UCE Ltd [2010] where 240 hours of community order were issued and a fine of £8,000. Even from this case there is evidence that we are still using an antiquated 19th century legal system rather than a 21st century one25.

At present any fines which are raised against a defendant go directly in to the treasury and not back in to the benefit of the environment. As indicated by the UCE case fines are small and sentences even smaller. Similarly within R V. Milford Haven Port Authority [2000]26 where Lord Bingham LJ did not feel that he could do more than draw attention to the factors which were relevant to sentence.

Within R. v. Anglian Water Services Ltd27 a case where pollutants killed fish where as a river was polluted over two kilometres and serious damage was done to the wildlife and fish that lived in it. The case had been committed to the Crown Court due to the magistrates declining jurisdiction.

24 Environmental Law, D, Hughes, T, Jewell, N, Parpworth, P, Prez, Butterworths, 4th Edition 2002 p 48

25 Environmental Law, D, Hughes, et al p 48

26 R v. Milford Haven Port Authority [2000] JPL 943

27 R. v Anglian Water Services Ltd Court of Appeal [2003] EWCA Crim 2243; [2004] 1 Cr. App. R. (S.) 62; [2004] Env. L.R. 10; [2004] J.P.L. 458; (2003) 147 S.J.L.B. 993; Times, August 18, 2003;

The court had found that Anglian Water was grossly irresponsible in its failure to have a safety system in operation. Anglian water contested that the Act was not a criminal one since s85(3) did not require mens rea. Interestingly Anglian water submitted that there was no causative culpability and that a high fine would impact upon investment.

It was held by the court allowing the appeal that the original fine was manifestly excessive for a single offence and was reduced to £60,000. The offence was a strict liability offence whereas cases had to be considered on their merits. Anglian water had acted promptly to limit the damage and made sure measures were taken to prevent a recurrence.

Additionally Anglian Water had pleaded guilty and there was no question of Anglian Water having deliberately cut corners to save costs. However, the fine had to be at a level to make an impact on the company to overcome any suggestions that it was cheaper to pay fines than undertake any work that was necessary to prevent the offence in the first place. In this case the magistrates appeared to have been correct to refuse jurisdiction and they should always do so if they thought an offence under s 85 may warrant a fine in excess of £20,000.

Conclusion

If the object of Criminal Law is to prevent the occurrence of damaging actions which affect society, then it would be non productive for the Courts to turn a blind eye to cases which are caused by accidents, carelessness or negligence. The question of motivation of Brockwells employees is in the first instance, irrelevant28.

Brockwells management admitted liability for the acts of its employees and by using the Anglian Water case against the scenario of Brockwell there would appear to be a similarity. Brockwell indicated admittance to their act, the question would be as to what size is the polluting company and therefore how large would the fine be. Taking in to account the Anglia Water case it would appear that the amount could be not in excess of £20,000 and more within the region of around £3,000 to £5,000.

Within the case of Fred Churchill (Construction) as previously mentioned there is a breach of Environmental Protection Act 1990 and not a breach of s85 of the Act. Within the information provided there is insufficient evidence that the illegal dumping of the removed substance leached or could have leached in to the River Trent.

28 B Wootton, Crime and Criminal Law 2nd Edition, London, Sweet and Maxwell 1981 at 47

Therefore with respect to the Act, there would be no case to bring against Churchill (Construction). Will it ever be satisfactory for environmental law to be dependable on guidelines developed for another area of law29?

29 Wasa International Insurance Co Ltd v. Lexington Insurance Co [2009] HL 40