Environmental Prosecutions – Key Considerations for Company Directors

Environmental law prosecutions are becoming more regular, and company directors need to factor environmental law compliance into their risk assessments when considering a new project or innovation. An example of where this failed (along with lack of checks and maintenance) was recently heard in the Worcester Crown Court. Two companies were convicted of causing trade effluent to pollute three kilometres of a brook. The Court issued fines and costs of over £90,000.

At present, corporations, especially listed ones, are in a difficult position. Directors’ duties and shareholders’ expectations effectively demand that profit must be maximised and company growth targets achieved year on year. But there are now increasing demands being put on directors and boards to not only minimise environmental wreckage (which is the unfortunate by-product of creating maximum profit for many industries) but also take positive action to reverse some of the damage caused. And to their credit, most large corporations are stepping up their efforts in this regard.

However, whilst the demand for constant growth and profit is required, environmental law breaches will occur, and the financial and reputational damage caused by successful prosecutions will only increase.

Therefore, with this in mind, here are the key considerations for company directors facing prosecution for environmental law breaches.

Cooperate with investigators 

It is vital to bring in criminal defence support for your in-house team, which is likely to have little or no experience dealing with Regulators. Bringing a prosecution is not straightforward, and much can be done to prevent a matter from reaching the Court. For example, in the case of a first offence, the evidence relating to the alleged environmental law breach may be multifaceted. Furthermore, the public interest factors which must be satisfied before prosecution can be brought may need to be discounted. The most dangerous situations concern high-profile incidents (for example, an oil spill or water contamination), and the Regulator is motivated to prosecute as a deterrent.

Cooperation with the Regulator is crucial. Experienced Environmental Law Barristers know how to balance assisting the Regulator with their investigation and ensuring that the client does not provide privileged or compromising information unnecessarily.

Utilise the opportunity to make representations

Cooperating with the Regulator may result in your legal team being allowed to make representations before the decision to prosecute is made. The representations should be made in writing to the investigating officer and the Regulator’s legal team if they are already involved.

When making representations, it is imperative that you:

  • Directly reference the Regulator’s enforcement and prosecution policy whilst emphasising the Regulator’s discretion. 
  • State your position fairly and highlight any mitigating factors.
  • Be careful not to make any unwitting admissions.
  • Understand that you may need to contribute to the Regulator’s investigation costs.

If you and your legal team maintain an open dialogue with the Regulator, they may provide an early indication regarding whether a prosecution will be brought or not. This will ensure you have plenty of time to build a credible, persuasive defence and PR strategy to minimise reputational damage should prosecution be inevitable.

Insurance cover

Careful examination of your insurance policies will be required to ascertain whether you are covered for liability resulting from civil and/or criminal litigation. Public liability insurance will typically not cover the legal and clean-up costs stemming from a deliberate act or criminal offence. Fines and penalties handed down following a successful criminal prosecution will also not be covered, but legal costs might be. 

You must notify your insurer as soon as prosecution is brought (or threatened). Not doing so could see your insurance failing to respond once proceedings conclude.

Final words

Environmental prosecutions can result in expensive, drawn-out litigation proceedings (including appeals) and reputational damage in the UK and abroad. Given the focus on the environment due to campaign groups and the general public, the pressure on Regulators to prosecute breaches will continue to grow. Early intervention by an experienced legal team is crucial to protecting the best interests of your organisation and its relevant stakeholders.

Get in Touch

Tanveer Qureshi specialises in general crime, white-collar crime and regulatory investigations and prosecutions.  If you require legal representation or have a related question, please contact me for free consultation or call me directly on ​0203 637 2190.