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Environment Agency investigations

Environment Agency Investigations Solicitors

The team at Olliers specialise in providing legal advice and assistance to businesses and individuals facing regulatory investigations and enforcement proceedings, as well as, prosecutions brought by the full spectrum of regulators and authorities, including the Environment Agency.

Our experienced lawyers understand the stress that such matters can cause for individuals and also the pressures such as financial hardship and reputational damage, that they can put upon a business and we are on hand from the outset to help minimise that impact.

What is environmental law?

Environmental law is an ever evolving area in a time when concerns over the human impact on the planet is often in the media. The sector touches upon areas such as climate control, energy resources, environmental damage and pollution and even corporate social responsibility (CSR).

Now more than ever businesses need to be aware of their responsibilities when it comes to protecting the environment because the consequences of non-compliance can be significant with hefty fines and potential imprisonment for company directors. The Environment Agency will also very often seek to recover their costs, compensation and in some cases may pursue the confiscation of assets under the Proceeds of Crime Act 2002. Environmental matters are not to be overlooked or taken lightly.

Who enforces environmental law?

The Environment Agency is the body responsible for enforcing the laws that protect the environment in England. In Wales, Natural Resources Wales undertake a similar role while in Scotland it falls to the Scottish Environment Protection and in Northern Ireland to the Northern Ireland Environment Agency.

There are a number of other regulators and Government Departments with a vested interest including the Department for Environment, Food and Rural Affairs (Defra); the Department for Energy Security and Net Zero; the Department for the Economy (Northern Ireland); the National Measurement and Regulation Office; the Marine Management Organisation and Natural England.

Local authorities also tend to have their own environmental health departments staffed by environmental health officers who will carry out a range of duties from inspecting businesses for food hygiene standards through to noise pollution, fly tipping and pest infestations.

When will the Environment Agency investigate?

The Environment Agency and other relevant authorities will tend to direct their efforts towards businesses undertaking activities which pose the most serious risk to the environment, as well as those where the risks of serious environmental damage are least well controlled or where a breach could undermine the regulatory framework.

The Environment Agency has previously stated that its investigators will prioritise and pursue cases involving serious environmental harm or harm to human health; organised crime; overt criminal activity; substantial illegal gain and threats of violence.

In pursuing matters, the Environment Agency will seek to stop any illegal activity and put right any environmental harm or damage. They will also seek to punish any offender in order to deter future offending by not only them but others.

What should I do if I am under investigation by the Environment Agency?

If the Environment Agency, local authority or any other regulator suspects that you have committed an environmental offence then as part of their investigation they are likely to ask you to attend an interview under caution.

The interview is an opportunity for you to respond to the allegations made and to put forward your own account of what has happened prior to any decision being made about whether or not to prosecute. As such an interview under caution can have a significant bearing on the outcome of your case and you should seek legal advice and assistance as soon as possible.

Our expert regulatory and criminal specialists can assist you with:

  • Obtaining initial disclosure of the information which the investigators have in relation to the allegations which you or the business face;
  • Preparing your own documentation and supporting information in response to the allegations;
  • Identifying alternative lines of enquiry which the investigators may not be aware of or may not have considered.

Even in situations where the authorities may have considerable evidence against you or the company, the importance of proper legal advice and assistance cannot and should not be underestimated. In many such cases, laying the foundations of solid, evidence based mitigation can mean the difference between a business surviving and a business going under.

What if it is the company that is under investigation?

If the company or organisation is suspected of committing an offence, it will be asked to nominate an individual to attend the interview under caution to answer questions on its behalf.

Such interviews can stray into personal questions of the individual director or senior manager in attendance, therefore it is important to obtain appropriate legal advice and assistance at the earliest opportunity.

There may, of course, be circumstances where both the company and individual directors or senior managers are suspected of having committed offences. You and the investigators need to know which capacity questions are being asked and indeed answered (if you so choose). A failure to do so could lead to all sorts of confusion if the matter were to progress, including issues around admissibility of evidence.

What should I expect in an interview under caution?

Prior to any interview both you and your legal representative will have been given sufficient time to discuss the allegations and decide on the most appropriate approach to the interview itself. When the interview begins, you will also be formally cautioned before any questions about the allegations are put to you.

What is the caution?

The caution is:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

It is generally broken down into 3 parts.

  • You do not have to say anything: As it suggests, those being interviewed are not obliged to answer questions and can, if they want, make no comment throughout.
  • But it may harm your defence if you do not mention when questioned something which you later rely on in court: Arguably the most important part of the caution as it is essentially a warning with regards to the approach that you take in the interview.
  • Anything you do say may be given in evidence: The interview will be audio recorded and in some cases video recorded.  If the matter proceeds to court, the recording can be referred to during the proceedings and very often a transcript is produced.

The team at Olliers have considerable experience dealing with the full spectrum of investigations and indeed investigators. We will make sure that the investigators do not ask repetitive or oppressive questions and will actively object to irrelevant or inappropriate questions on your behalf.

Will there be a prosecution?

If there is sufficient evidence of an offence having been committed, the regulator or local authority will need to decide what enforcement action to take. In the case of the Environment Agency they are bound to follow the requirements of the Regulators’ Code which is the framework for how regulators ought to engage with those they regulate.

There is no one size fits all approach to enforcement and the action taken by the likes of the Environment Agency must be appropriate and proportionate to the particular case. This means that the regulator will necessarily consider the risks posed to the environment and people; the seriousness of any breach; the impact on the environment, people and legitimate business. They will also need to balance the costs of taking enforcement action against the benefit of doing so and be mindful of the need to take action which supports rather than hinders the growth of legitimate businesses.

Action falling short of prosecution may include giving advice or issuing a written warning to bring about compliance. The Environment Agency also has a range of civil sanctions available to use in certain circumstances which include fixed and variable monetary penalties; compliance notices; restoration notices; stop notices and enforcement undertakings.

In order to bring a prosecution, the Environment Agency will need to be satisfied that firstly there is a realistic prospect of a conviction based upon the evidence. Secondly, a prosecution must be in the public interest. Public interest considerations will include matters such as the intent of the alleged offender; the seriousness and extent of the environmental impact; the motivation behind the offending behaviour, as well as, the deterrent effect of a prosecution, amongst other things.

Engaging the team at Olliers could be the difference between you and/or your company being prosecuted and no further action being taken or some other form of out of court disposal.

What will happen if I am convicted?

Depending on the circumstances, prosecutions brought by the Environment Agency may be heard in the Magistrates’ or Crown Court. A conviction will usually result in some form of financial penalty but in more serious cases it can result in a term of imprisonment for the individuals involved.

In addition, the Environment Agency may ask the court to impose any number of ancillary orders including disqualification of a director; confiscation under the Proceeds of Crime Act 2002; compensation or a remediation order, amongst others.

Why choose Olliers?

We have many years’ experience and our lawyers recognise the potentially far-reaching consequences an investigation and worse still a prosecution can have on you and your business, particularly Small and Medium –sized Enterprises (SMEs).

We know that even an investigation has the potential to undermine the confidence that customers and staff have in you and your business. We recognise the possible reputational and financial consequences including reduced work and increased insurance premiums, as well as, the potential costs in fines/compensation and restoration or remedial work.

It is for these reasons that we take a pro-active approach to engaging not only with our clients but the investigators to achieve the best possible outcome, no matter what the circumstances may be.

Recent environmental cases

  • R v J – represented a company director who was prosecuted for unauthorised treatment of waste at his waste management plant.
  • R v A – Environment Agency prosecution where the client was engaged as a director in an illegal and unregulated operation in handling/transportation of waste which was exceedingly hazardous.
  • Birmingham City Council –v – M- represented the owner of a takeaway being investigated following serious concerns raised during an environmental health inspection. Matter dealt with by way of a caution following written submissions.
  • Environment Agency-v – L – represented a company following a chemical spillage which resulted in pollution of local waterways and caused the death of hundreds of fish.
  • Environment Agency-v- P – represented a company and its sole director who were prosecuted following an investigation into the transportation and dumping of waste soil without the appropriate permits. Director acquitted of all counts following trial.

If you are facing a regulatory investigation or the possibility of an investigation and wish to speak to one of our team, please contact us at the earliest possible opportunity for a confidential discussion. We are able to represent you wherever you are based across England and Wales.

Our Regulatory team includes Managing Director Matthew Claughton, Gareth Martin, Toby Wilbraham and Zita Spencer. All our specialists have many years’ experience in dealing with a range of regulatory investigations and prosecutions, as well as, complex criminal cases.

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