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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 prosecutions on indictment between 2000 and : 12 summary and 2 on indictment: – Fines and Costs: €294, : 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 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

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,

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

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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