Simon Colvin, partner and national head of the environment team at Weightmans LLP, looks at the issue of delays and assurances following an environmental incident. Will everything really be “alright”? CIWM Journal Online Exclusive
How often have you heard a tale of a business suffering an environmental incident and in the aftermath of the incident they cooperate with the environmental regulator on the basis of an assurance by the regulator that everything will be “alright”. But then everything is not “alright”.
Once the immediate impact of the incident has been addressed, a formal interview under caution follows, and then a prosecution. The company in question objects because they were told everything would be “alright” and cooperated with the environmental regulator as a result of that commitment. But unfortunately that objection is not going to prevent the environmental regulator from pursuing a prosecution and it is very unlikely to persuade a court that it should not continue with the court proceedings.
Similarly, how often have you heard of environmental regulators taking many months to reach a decision in relation to possible enforcement action and a possible prosecution?
So when will an assurance from an environmental regulator that it will be “alright”, or a similar assurance be enough to persuade a court that it would be unfair to continue with the proceedings and to issue a permanent stay? Or in what circumstances will a delay on the part of an environmental regulator to pursue an investigation, or enforcement action, be enough to persuade a court that it would be unfair to continue with a prosecution and to stay the court proceedings?
The answer is in very limited circumstances.
A courts ultimate objective is to ensure the accused receives a fair trial. This is in line with Art 6 of the European Convention on Human Rights and also the principles of natural justice that have been developed in England. To stay court proceedings and bring them to an end, a court must be satisfied that it would be unfair for the accused to stand trial.
Case law has established that abuse cases fall into one of two categories, “those in which the prosecutor can be said to have manipulated or misused the rules of procedure; and those in which there has been an inordinate and inexcusable delay which has actually prejudiced the defendant”.
There are generally two key questions that have to be considered when deciding whether or not a delay, or the actions of the regulator amount to an abuse – (i) have the actions of the regulator undermined the rule of law and the administration of justice? (ii) what is the extent of the prejudice to the defendant? The courts have made it clear that trials will go ahead unless there are compelling reasons for them not to. It is for the defendant to demonstrate on the balance of probabilities that there was an abuse.
For a delay to amount to an abuse of process it must be unjustified and it must result in genuine prejudice and unfairness. Case law has established that there are certain factors to be considered in order to decide whether a delay amounts to an abuse – (i) the length of the delay, (ii) the reason for the delay, and (iii) the prejudice suffered by the defendant.
If you feel that a delay on the part of a regulator has resulted in genuine prejudice to you and your business, then ask yourself these questions:
If the delay has been a long one, many months or even years, there is no good or justifiable reason for that delay (related to the case under consideration e.g. the completion of wider investigations), and you have suffered prejudice, perhaps because you can no longer call certain eye witnesses, or other evidence is no longer available due to the passing of time, then you might be able to successfully raise an abuse argument on the basis of delay.
In certain instances the value of an assurance is that it can be said to give rise to a “legitimate expectation” that no further action will follow. Case law suggests that breach of an assurance is not likely to constitute an abuse unless (i) there has been an unequivocal representation by the regulator that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment.
Clients often approach me and describe situations that would fall into the “legitimate expectation” category of abuse. But without very clear evidence it is hard to successfully raise such arguments. The need for an unequivocal representation highlights the importance of keeping contemporaneous notes of any conversations with regulators.
A common ground for suggesting there has been reliance to the detriment of the accused is where the accused has gone on to cooperate and share information with a regulator in the mistaken belief that no action will follow. Where businesses are taking such an approach, it would be worth their while communicating that to the regulators in writing at the time.
I am aware that the environmental regulators in England are under significant pressure at the moment and this article is not an attempt to add to that pressure, it is intended to inform those that might find themselves subject to enforcement action by the environmental regulators. Its purpose is to ensure those individuals and their businesses understand the “rules of the game”.
Follow Simon on Twitter @envlawyer