INTERACTION BETWEEN THE REGULATOR AND PRACTITIONERS IN THE FIELD OF ENVIRONMENTAL INVESTIGATIONS

Anne Brosnan

Deputy Director (Chief Prosecutor) Legal Services, The Environment Agency, England

1. INTRODUCTION

Prosecution of environmental offences almost invariably involves the presentation of complex evidence to a court, dealing with the causation of an offence, and its implications, in terms of harm or potential for harm to the environment, to flora and fauna, and to human health. As the principal environmental regulator for England, the Environment Agency issues environmental permits and then goes on to monitor, investigate and prosecute breaches. Additionally the Agency prosecutes environmental offences where there may be whole scale illegal activity outside of the regulatory regime. The Agency relies upon evidence to set its permits and subsequently to justify interventions in situations where operations may have an adverse impact on the environment or are already having such effects.

The importance of sound, reliable evidence cannot be understated for a regulator. In cases brought to court by the Agency and in other challenges relating to the potential for harm associated with a proposed operation, the use of expert evidence and expert witnesses is crucial. Cases may require interpretation of the analysis of water and waste samples and what these mean in terms of environmental impact. Expert witnesses are frequently called upon to advise during investigations and to give evidence on complex issues to a court or tribunal.

The Environment Agency utilises many analytical techniques, through the services of its own National Laboratory Service, but has additionally used chemical fingerprinting of petroleum products in cases such as the explosion at the Buncefield Oil Storage Terminal and other cases relating to losses from underground petrol and diesel storage facilities. Cases have been brought by the Agency in relation to the loss of pesticides, fertilisers, food products and Tributyltin (TBT). The impacts on human health but also on flora and fauna, fish and shellfish must be assessed and verified. Accordingly a good relationship between the regulator and the scientist is key and the discipline of environmental forensics is increasingly coming to the fore. Interaction between different professionals, who may not always speak a common language, is critical and we will consider how this can best be facilitated, with case related examples.

The Environment Agency (the EA) is the largest of the UK's environmental regulators, established by statute in 1995. It seeks to control polluting activities and operations and those with potential to cause harm to human health and the environment.

It is the principal aim of the Agency to protect or enhance the environment, taken as a whole, so as to make a contribution towards attaining the objective of achieving sustainable development taking into account any likely costs involved.

The principle of cost-effective regulation is restated in the directly applicable 'Regulators' Code', the Statutory Code of Practice for Regulators. Regulators must generally have regard to the Code when developing policies and operational procedures that guide their regulatory activities. This formally establishes the principle of risk based regulation. Section 3, headed 'Regulators should base their regulatory activities on risk' states:-

3.1 Regulators should take an evidence based approach to determining the priority risks in their area of responsibility, and should allocate resources where they would be most effective in addressing those priority risks.

The proposition that resources should be targeted where they will be most effective is not new but is explicitly stated here by Government. This principle is well expressed in the Hampton Report which concluded:

"Risk assessment involves the identification and measurement of capacity to harm and, if such capacity exists, an evaluation of the likelihood of the occurrence of the harm. By basing their regulatory work on an assessment of the risks to regulatory outcomes, regulators are able to target their resources where they will be most effective and where risk is highest."

The EA is a permitting authority, an operating body and a regulator. As a modern regulator, the EA seeks to minimise unnecessary burdens by taking a purposive approach to permitting. After the permitting stage, compliance is assured in most cases by some degree of monitoring and enforcement. Much of the environmental protection legislation which it enforces comes from Europe, in particular Directive 2008/99 on the Protection of the environment through criminal law requires member states of the EU to have criminal penalties available for serious infringements of community law on protection of the environment. This criminalises behaviour which is damaging or potentially damaging to the environment. Because of the specialist nature of this work, the EA has an in house enforcement and prosecution capability. It employs...