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Criminal Enforcement of Environmental Law in Ireland Seán Guerin Barrister-at-Law.

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Presentation on theme: "Criminal Enforcement of Environmental Law in Ireland Seán Guerin Barrister-at-Law."— Presentation transcript:

1 Criminal Enforcement of Environmental Law in Ireland Seán Guerin Barrister-at-Law

2 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 2

3 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 3

4 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 4

5 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 5

6 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 6

7 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. 7

8 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 8

9 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 9

10 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 10

11 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 11

12 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 12

13 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 13

14 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 14

15 The investigation – Self-Incrimination EPA v. Swalcliffe [2004] 2 IR 549 (Kearns J.) – Records maintained under statutory obligation – No infringement of the privilege Explanation and comment Voluntariness and admissibility – the caution Revenue approach – clear distinction Integrated enforcement 15

16 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 16

17 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 (2 nd ed.), para. 3-014 17

18 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 18

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