Presentation

Report
Criminal Enforcement of
Environmental Law in Ireland
Seán Guerin
Barrister-at-Law
Rate of Criminal Enforcement - EPA
• 150 summary prosecutions between 2000 and
2008
• 10 prosecutions on indictment between 2000 and
2008
• 2010: 12 summary and 2 on indictment:
– Fines and Costs: €294,625
• 2011: 23 summary (22 successful)
• 2011: 658 inspections and 169 audits at EPA
licensed waste and IPPC sites
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Why Criminal Enforcement of
Environmental Law?
• Crime is a wrong against the public
– “a breach and violation of the public rights and
duties, due to the whole community, considered as
a community, in its social aggregate capacity”
• Level of harm involved
• A serious enforcement regime
• Capable of affecting behaviour
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Inappropriate Criminal Enforcement
• Punishment v. Prevention / Protection
– S. 9(3) EPA Act 1992
• Delay
• Expense
• Process issues
– Fair procedures
– Disclosure
• Onus and standard of proof
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EPA Policy on Enforcement
• Principles
– “The OEE will only pursue a prosecution after full
consideration of the event giving rise to environmental
concerns. “
• Factors:
–
–
–
–
–
environmental and other effects
foreseeability of the offence and other circumstances
the intent of the offender (individual and/or corporate)
history of offending
attitude of the offender and level of co-operation
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Offences
• Section 8 EPA Act 1992
• Contravention of Act, regulations, order or notice
• Section 82(2) as amended – requirement for
licence in respect of activity
• Section 86(6) as amended – failure to comply
with conditions of licence
• Section 39 Waste Management Act 1996 – waste
activity not under and in accordance with a
licence
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Mens Rea and the Onus of Proof
• Absolute liability offences:
– Maguire v. Shannon Regional Fisheries Board [1994] 3
IR 580 - regulatory in character, not truly criminal
– Shannon Regional Fisheries Board v. Cavan County
Council [1996] 3 IR 267 – Blayney J: mens rea
“unnecessary and undesirable” – obiter
– Keane J: third category – strict liability – defence of
reasonable care
• CC v. Ireland [2006] 4 IR 1
– Presumption that mens rea required
– Approval of judgment of Keane J.
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Mens Rea and the Onus of Proof
• Reilly v. Patwell [2008] IEHC 446 (McCarthy J.)
– Litter pollution
– CC approves minority decision of Keane J.
– Third category appropriate where no notice or opportunity to
engage
– Factors affecting absolute liability: moral gravity, social stigma,
penalty, ease of compliance, effectiveness, ease of
enforcement, social consequences of non-compliance,
desideratum
• Minister for the Environment v. Leneghan [2009] 3 IR 727
(Hedigan J.)
– Grazing livestock in a special protection area
– Moral gravity, regulatory function, European obligations,
effectiveness
– Mens rea not required – strict (or absolute) liability
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Mens Rea and the Onus of Proof
• Brady v. EPA [2007] 3 IR 232 (Charleton J.)
– Conditions of IPPC licence
– Possible criminal liability for acts of others
spreading slurry
– Most troubling aspect of the case - penalties
– Approval of judgment of Keane J.
– Neither absolute nor strict liability
– Only liable if intends breach or advertently takes a
serious and culpable risk that a breach will occur
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Mens Rea and the Onus of Proof
• Compare civil enforcement
• Wicklow County Council v. Fenton (no. 2)
[2002] 4 IR 44 (O’Sullivan J.)
– Proof of intention foreseeability or recklessness is
not required in action under sections 57 and 58 of
the Waste Management Act 1996
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Mens Rea and the Onus of Proof
• Summary
– Serious environmental offences require proof of
mens rea – intention or recklessness
– There remains a role for offences of absolute
liability – has to be justified
– In between are offences of strict liability with a
defence of reasonable care – significance of
absence of notice
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Reversing the burden of proof
• O’Leary v The Attorney General [1993] 1 IR
102 (High Court, Costello J.), [1995] 1 IR 254
(Supreme Court)
• “[A] criminal trial held otherwise than in
accordance with [the presumption of
innocence] would, prima facie, be one which
was not held in due course of law”
• Evidential or legal burden
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Reversing the burden of proof
• McNally v. Ireland [2009] IEHC 573
(MacMenamin J.)
• Charities Act 2009, section 99(2)
• Presumption that Mass card not authorised
• Shifted legal burden on balance of
probabilities
• Passed a proportionality test
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Reversing the burden of proof
• People (DPP) v. Egan [2010] 3 IR 561
– Defilement – lack of knowledge as to age
• People (DPP) v. Smyth Snr [2010] 3 IR 688
– Drugs – lack of knowledge/grounds for suspicion
• People (DPP) v. PJ Carey (Contractors) Limited
[2011] IECCA 63
– Health & Safety – as far as reasonably practicable
• Burden of proving a reasonable doubt
• Importance of the prosecution evidence
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The investigation – Self-Incrimination
• EPA v. Swalcliffe [2004] 2 IR 549 (Kearns J.)
– Records maintained under statutory obligation
– No infringement of the privilege
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Explanation and comment
Voluntariness and admissibility – the caution
Revenue approach – clear distinction
Integrated enforcement
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Sentence – the corporate offender
• People (DPP) v. South East Recycling [2010]
IECCA 1 (O’Donnell J.)
– “should never be an option for a licensee to
consider that it is sensible or wise or even
profitable to proceed and breach any provision of
any licence”
• Requirement for evidence – profit and impact
• Disparity in sentence: summary or indictment
– €3,000 or €350,0000
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Sentence – the individual offender
• Imprisonment
• People (DPP) v. Duffy [2009] 3 IR 613
– Relevance of previous good character and
recidivism
– Punishment of company and officers
– Separate legal personality
• General Principles
– Burnett-Hall (2nd ed.), para. 3-014
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Costs
• The prosecutor’s immunity
• The District Court rules – Dillane v. Attorney
General [1980] ILRM 167
• Not applicable to EPA
• Presumption for costs order if successful
• Indictment – People (DPP) v. Bourke Waste
Removal Ltd. [2012] IECCA 66
– Event is the starting point; discretion remains
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