How to represent your client at an Environmental PACE interview?

John Dyne - Solicitor

Are environmental crime cases challenging?

As a non - police prosecuting authority the Agency’s investigations are required to comply with the PACE Codes of Practice.

The Environment Agency and PACE 1984

The investigation stage – Pollution of a Tributary

“We have been investigating the above matter and we believe that an offence may have been committed. We now wish to formally interview an appropriate employee of the company to get a complete picture of events. The interview will allow the facts to be clarified and represents an opportunity for the company to give an explanation”.

A person must not, except under and to the extent authorised by an environmental permit cause or knowingly permit a water discharge activity ....

Water discharge activity meansThe discharge or entry to inland freshwaters ....of any –(i)poisonous, noxious or polluting matter,

Note: H/L Empress Car Company (Abertillery) Ltd V NRA.Unusual weather/ freak of nature or some extraordinary natural event or extraordinary 3rd party act - the distinction between ordinary and extraordinary is one of fact and degree so as to negative the causal connection.

• Was the discharge permitted?• What evidence has so far been obtained against the client?• Were photographs taken?• Were samples taken?• What does the analysis indicate?• Has the tributary been recently surveyed?• What is the classification of the tributary?• Has the discharge altered the quality of the tributary?• Is there scope for other sources of pollution?• Is the discharge poisonous or noxious? • Has the alleged polluting nature of the discharge been exaggerated by the Agency?• Is the discharge polluting?• Is there sufficient evidence for there to be a realistic prospect of conviction?

Evidential considerations – pre interview

The investigation stage – deposits of controlled waste

“The Environment Agency are investigating the deposit of controlled waste on land known as [ xxxxxx]. To deposit controlled waste on land where no permit is in place authorising such deposits is an offence under EPA 1990/ EPR 2010 punishable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding £50,000 or both, or on conviction on indictment to imprisonment for a term not exceeding five years or both.

It is now necessary to interview you under caution in respect of this matter etc..”

EPA 1990S33(1)a person shall not—deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

EPR201012.—(1) A person must not, except under and to the extent authorised by an environmental permit—(a)operate a regulated facility;

“waste operation” means recovery or disposal of waste;

Defence – S 33(7)

It shall be a defence for a person charged with an offence under this section to prove—(a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or(b) that he acted under instructions from his employer and neither knew nor had reason to suppose that the acts done by him constituted a contravention of subsection (1) above; or(c) that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where—(i) he took all such steps as were reasonably practicable in thecircumstances for minimising pollution of the environment and harmto human health; and(ii) particulars of the acts were furnished to the waste regulation authority as soon as reasonably practicable after they were done.

Defence – Reg 40

40.—(1) It is a defence for a person charged with an offence under regulation 38(1), (2) or (3) to prove that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where—(a) the person took all such steps as were reasonably practicable in the circumstances for minimising pollution; and(b) particulars of the acts were furnished to the regulator as soon as reasonably practicable after they were done.

Evidential considerations – pre interview

• What evidence has so far been obtained against the client?• What are the issues?• Can those issues be addressed – some innocent explanation?• Is it controlled waste?• Have photographs been taken?• Have samples been taken?• What does the analysis indicate?• Do any exemptions apply? Have they been registered?• Do any statutory defences apply?•Does the Agency have a Regulatory Position Statement regarding the waste? (abuse)•Is it a low risk waste operation? (abuse)

Modernising Waste Regulation PanelThe role of the panel is to make decisions on specific waste issues such as whether or not permits or exemptions apply.If requirement for a waste permit is disproportionate to the activity a RPS will be produced setting out how Agency intends to regulate a particular activity over a set period.

The low risk initiative is part of this overall aim and has been set up to identify low risk waste operations that are not exempt from environmental permitting but which do not justify enforcement.

The investigating officers may not be aware of these RPSs and LRWOs which waive the requirement for a permit for a particular activity provided conditions are met.

Agency Regulatory Position StatementsLow risk waste

Breach of Permit cases – the investigation

• Breach of waste acceptance condition – consult List of Waste Codes Guidance• Failure to maintain records and returns of wastes transferred off site – is it still waste?• Exceeding discharge consent thresholds – does client monitoring/ analysis concur?• Has the designated sample point been used?

Case Assessment

1. Is there sufficient evidence for there to be a realistic prospect of conviction?

2. Is this now a damage limitation exercise?

3. If there is a substantive defence what facts will the client need to get across at interview so as not to risk adverse inferences being drawn? This will require a careful assessment of the issues.

4. Is the client capable of getting the facts across in a clear, coherent and accurate manner? (You cannot give evidence for the client)

5. Should a statement be prepared to ensure the salient facts are disclosed?

The Interview

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

Follow up and next steps post interview

• wait and see?• provide exculpatory documentary evidence (caveat)• representations to the Agency regarding its stated enforcement response

options:

“We will normally provide advice and guidance after an offence is committed”.“We will agree solutions and timescales”“We recognise that prosecution is a serious matter which should only be embarked on after full consideration of the implications and consequences”.“In the event of continued or further non compliance(s) this may influence the subsequent choice of response”

• Hampton PrinciplesRegulators should recognize that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection.

End