Friend of foe? Strict liability in English environmental licensing regimes

Research output: Contribution to journalArticle

Abstract

There is no doubt that public safety is at risk when companies fail to comply with environmental standards and that pollution damage can have devastating, unforeseeable and long-lasting effects on the environment and human health. It is therefore of paramount importance that the legal system guards against and prevents, wherever possible, the risk of such harm occurring. The imposition of 'strict liability' and the relative ease of prosecution in such cases assists regulators in achieving the dual goals of compliance and deterrence. By defining environmental crimes as strict liability offences, Parliament has given the Environment Agency the power to prosecute in the absence of mens rea, in those cases it deems to be appropriate. While there are strong arguments against the use of no-fault offences in criminal law, particularly in its application to individuals, I would argue that the enforcement process from investigation to sentencing mitigates the potential harshness of strict liability: in most cases, the Agency will not proceed to prosecution unless it can demonstrate some degree of blameworthiness, fault, intent or negligence on the part of the offender, and the courts clearly consider the defendant's culpability in determining the sentence. Coupled, in some instances, with the availability of defences such as due diligence, strict liability would appear to be appropriate. But perhaps it is time to consider other enforcement mechanisms, such as the imposition of administrative fines, which would not carry the stigma of criminal conviction. Consequently, their application in the absence of culpability would be less contentious. At present, however, it would appear that strict liability for criminal environmental law is here to stay.

Bibliographical metadata

Original languageEnglish
Pages (from-to)67-76
Number of pages9
JournalEnvironmental Law and Management
Volume16
Issue number2
Publication statusPublished - Mar 2004