Although some breaches of environmental law amount to criminal offences, not all do.
There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.
It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.
Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.
Criminal and offence specific responses to breaches of environmental law
A Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.
A Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.
Prosecution fixed penalty – can be imposed for certain offences. If it is not paid a prosecution can follow.
Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.
When the Agency decides to impose a civil sanction (except a stop notice) they will:
- serve a notice of intent
- provide an opportunity to make written representations within 28 days
- consider any representations
- make a final decision and notify you with concise reasons for the decision.
A Compliance notice – this requires the offender to come back into compliance and can also apply where advice has been given but not followed.
A Restoration notice – a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.
A Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.
Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.
Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.
Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.
How we can help with breaches of environmental law
Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations.
Please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham officer or use the contact form below.