Criminal Enforcement of Environmental Law in Ireland

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

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 • Aserious enforcement regime • Capable of affecting behaviour

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

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

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

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: mensrea“unnecessary and undesirable” – obiter • Keane J: third category – strict liability – defence of reasonable care • CC v. Ireland [2006] 4 IR 1 • Presumption that mensrearequired • Approval of judgment of Keane J.

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

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

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

11. Mens Rea and the Onus of Proof • Summary • Serious environmental offences require proof of mensrea – 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

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

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

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

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

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

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

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