Ignorance is no defence

Simon Colvin outlines the similarities and differences between criminal and civil law

The terms “criminal” and “civil” are often mentioned when dealing with environmental compliance and liability, but what do they mean and how do they differ?

Environmental responsibilities and obligations are derived from one of two sources. They either come from statutory controls, in the form of acts of parliament or regulations, or through what is known as “common law” – the doctrines and principles developed by the courts adjudicating on individual cases in areas such as nuisance and negligence. Both will often require that an individual not do something or take some form of action.

Generally speaking, a failure to comply with a statutory control will result in a criminal offence being committed and the imposition of a criminal sanction. Regulators also have a range of options, such as statutory notices, to deal with ongoing breaches and bring a business back into compliance, or to stop an activity. In England and Wales, regulators can now impose civil sanctions, such as enforcement undertakings and variable monetary penalties, as an alternative to pursuing a criminal case.

Common laws, meanwhile, are enforced by individuals or businesses against each other either on the basis of agreements, such as a breach of contract – through a failure to meet the terms of an agreement or to exercise reasonable skill and care – or on the basis of torts, such as negligence.

Torts are based on the principle that: (a) one party owes another a duty of care; (b) the conduct of one of the parties has resulted in a breach of that duty; and (c) the breach resulted in harm to the other party or their property. There are a range of sanctions available to the civil courts, including awarding compensation and issuing injunctions to halt the harm.

In an environmental context, there are certain overlaps between the civil and the criminal regimes. Examples include the ability of individuals to enforce breaches of the statutory nuisance regime provided in the Environmental Protection Act 1990.

The use of civil sanctions to make reparation for some criminal offences in England and Wales is another example. The sanctions are “civil” as they do not involve recourse to the criminal courts and often relate to the payment of money, which, if not paid, can be recovered as a debt. Regulators are still able to use criminal sanctions, such as pursuing a prosecution, in the event of non-compliance with the civil sanction.

Proof and liability

The “standard of proof” in court cases relates to the burden on the party bringing the civil claim or the regulator pursuing the prosecution, and describes the standard to which the facts must be established to succeed. In civil cases, the standard of proof is “on the balance of probabilities” – ie that it is more likely than not that the claimant’s loss was a result of the plaintiff breaching a duty of care. This is a lower threshold than in criminal cases, where the prosecution must prove the defendant’s guilt “beyond all reasonable doubt” – ie that there is no logical explanation other than that the defendant committed the offence.

The majority of criminal environment offences are “strict liability” offences, which means there is no need to prove that the defendant intended to commit the crime. For offences such as causing water pollution under regulations 12 and 38 of the Environmental Permitting Regulations 2010, it is enough that a company or individual was undertaking a positive action, or failed to act to prevent an eventuality. This approach is thought to be the most effective means of protecting the environment, with the general perception being that to require proof of fault, or intent, would impose too high a burden on regulators.

The majority of civil claims, meanwhile, require a claimant to show fault on the part of a defendant, whether that is a failure to “exercise reasonable skill” or to “take reasonable care”.

Different venues

Criminal cases are pursued in magistrates’ courts and crown courts. Magistrates’ sentencing powers are lower than those of crown court judges, both in terms of the level of fines (currently there is a £5,000 limit per offence) and the length of prison sentence. Meanwhile, in the civil regime cases are heard in the first instance in county courts.

Both criminal and civil legal regimes use common terms for the upper courts – High Court, Court of Appeal and Supreme Court (formerly the House of Lords). These higher courts each have specialist divisions to deal with civil and criminal matters. Beyond the Supreme Court, there is the European Court of Human Rights and the Court of Justice of the European Union – which is becoming increasingly involved in the resolution of disputes involving European law, such as environmental impact assessment. There is also the emerging tribunals system, which contains chambers dealing with specific topics, including the environment. This function deals mainly with permit appeals at the moment.

Alternative dispute resolution (ADR) is used widely in the resolution of civil disputes in an attempt to avoid going to court. The use of ADR in a criminal context is limited, but it may have a significant role in future, particularly where there is a complicated technical aspect at the heart of a prosecution, such as whether an operator was employing best available techniques, for example. Often, a criminal court is not the best forum to determine such issues.

Time limits and penalties

There are time limits on how long after a breach a civil claim can be brought. For contractual claims the limit is six years from the date the contract is breached, but this is extended to 12 years if the document is a deed. Generally, nuisance or negligence claims must be made within six years of the date the damage or the loss was suffered. In criminal law, there is a six-month time limit on the enforcement of “summary” offences – those which can only be heard by magistrates, such as a breach of a notice relating to noise from a construction site under section 60 of the Control of Pollution Act 1974. However, there is no time limit on the enforcement of “either way” offences – those which can be tried in either the magistrates’ court or the crown court, such as water pollution offences under the environmental permitting regime. The only practical limitations that apply in “either way” offences are the availability of witnesses and the quality of evidence.

It is important to remember that specific legislation can take a different approach to time limits. For example, the Environmental Damage (Prevention and Remediation) Regulations 2009 do not impose liability retrospectively, but the UK contaminated land regime does – through Part 2A of the Environmental Protection Act 1990.

There are similarities in the penalties imposed by the criminal and civil regimes, in that there is a financial element. However, the fines issued in criminal courts are often significantly lower than the damages awarded for a successful civil claim, although this is likely to change in 2014 with the introduction of new sentencing guidelines for environmental offences.

Under the plans, there will be four categories of harm – with 1 being the most significant and 4 the least damaging. Culpability is also assessed using four categories: deliberate, reckless, negligent and low/no culpability. As an example, fines for a category 1, reckless offence committed by a large company would start at a £335,000 fine, with a penalty range of £125,000 to £1 million.

Civil injunctions can have a similar effect to statutory notices in that they can require an operator to take specific action or to stop an activity. Otherwise, the systems are markedly different. The main difference stems from the power of criminal courts to impose prison sentences, but this only applies when looking at individuals, such as company directors.

While there are significant differences between the civil and criminal regimes, there are also similarities and it is important for environment practitioners to have an understanding of both.