This article provides a report and detailed analysis of the landmark case of Ian Cook v. Environment Agency and May Gurney Ltd (17 May 2006). This is the first case in which the Environment Agency has ever been successfully prosecuted for a pollution offence. This article evaluates the future implications of this precedent case and discusses it in the context of other private prosecutions of environmental crimes.
I. Case Report
On 17 May 2006 the Environment Agency and its contractors, May Gurney Ltd were fined a total of £35,000 and ordered to pay costs as a result of admitting a charge of polluting the river Barle in Devon contrary to section 4 of the Salmon and Freshwater Fisheries Act 1975. (2)
A private prosecution was brought against both defendants by a local fishery owner Ian Cook. The prosecution was the first of its type because it was the first time that the Environment Agency had ever been successfully prosecuted for a pollution offence. The Environment Agency is responsible for maintaining and improving the quality of fresh water in England and Wales. In 2004 the Environment Agency prose-cuted 233 companies with fines over £2.3 million. (3)
The prosecution arose out of an incident on 2 September 2005 when cement grout was accidentally discharged into the River Barle in Devon. The Environment Agency had contracted with May Gurney Ltd, a Norwich construction company, to build a gauging station on the River Barle. May Gurney's contractors were responsible for the acci-dental discharge while carrying out the construction works. The discharge occurred when the river was at a low level. The result was that the river turned brown and there was an accepted kill of about 300 fish. (4)
May Gurney Ltd admitted responsibility to the Environment Agency for the accidental discharge as soon as the mistake was realised. The Environment Agency categorised the incident as a category one incident - the most serious level of incident. In 2004 category one incidents affecting water accounted for less than 0.05 per cent of all substantiated pollution incidents affecting air, land and water. (5)
Mr Cook, director of the River Exe Foundation, a non-profit charitable organisation, was contacted by the affected local fishery owners. Mr Cook owns part of the river Exe, a major river in Devon, known for its wild Salmon stocks. The affected watercourse, the River Barle, is a tributary of the River Exe. Mr Cook had himself felt the effect of this pollution incident, some 20 miles downstream from the site of the pollution, when he found dead salmon in his stretch of the River Exe. Mr Cook urged the Environment Agency to prosecute May Gurney Ltd and offered the information that he had gathered to assist with its investigation. The Environment Agency, being the public body that brings such prosecutions could not, of course, prosecute itself.
However, six months later, when no prosecution occurred, Mr Cook brought a prosecution himself against the Environment Agency and May Gurney Ltd. The Act allows for private individuals to bring a prosecution if permission from the Minister of Agriculture, Fisheries and Food is obtained. (6) Mr Cook, representing himself as a litigant in person, obtained written permission and had to appear before a District Judge to issue a summons against the Defendants.
Both defendants appeared at Cullompton Magis- trates on 10 April 2006 where they both pleaded guilty to the charges. After hearing the facts from Mr Cook and mitigation from both defendants the lay bench committed the defendants to the Crown Court for sentence because it felt that its powers of sentencing were insufficient. The maximum fine magistrates can order when summarily trying an either way offence is £5,000. The Telegraph newspaper reported that the Chairwoman of the bench, Sarah Fry, said in court that "Given that the Environment Agency is the watchdog it is extremely serious when they themselves fail to comply". (7)
On 17 May 2006 both defendants were sentenced at Exeter Crown Court. Mr Cook told the court "the Environment Agency sets standards for everyone else. When they fail there is surely greater culpability." (8) It was reported that in court, counsel for May Gurney Ltd, Garrett Byrne, apologised to each affected river owner and said that the company was "thoroughly ashamed to find itself in court". Richard Banwell, counsel for the Environment Agency, reportedly told the magistrates at the earlier hearing that "This is a day of considerable sadness for the Agency to find itself prosecuted for a pollution incident for the first time. " (9)
A total fine of £35,000.00 was imposed upon the defendants. The fine was split 80 per cent to May Gurney Ltd (£27,500) and 20 per cent to the Environment Agency (£7,500). They were also ordered to pay Mr Cook's costs. His Honour Judge Jeremy Griggs stated when sentencing that it was "surprising to find the Environment Agency as a defendant in the dock" (10) and "it was clearly for them a serious matter - in one sense an embarrassing matter". (11)
The proportion of the total fine that the Environ-ment Agency was ordered to pay reflects that it was the employer of May Gurney Ltd and that this was an unintentional discharge into the river. However, being the employer of May Gurney Ltd was sufficient for the Environment Agency to be culpable under the terms of the Act. In setting the Environment Agency's fine, Judge Griggs, commented as follows:
"So far as the Environment Agency is concerned, I am satisfied that a different scale of fine is appropriate. They are the agency responsible for policing; they are not a profit-making organisation. They by the very fact of their appearance here, will suffer very considerably from the inevitable publicity that this case will attract". (12)
Mr Cook's submission was partly based on the case of Alphacell Ltd v. Woodward. (13) In Alphacell polluted water from tanks sited next to a river overflowed, despite the operation of pumps, into the river. Although Alphacell was a prosecution under an earlier Act, the Rivers (Prevention of Pollution) Act 1951, the wording of section 2(1) of that Act was the same as section 4(1) of the Salmon and Freshwater Fisheries Act 1975. The House of Lords established in Alphacell that the word "causes", in the legislation, does not require the prosecution to establish that a defendant negligently, knowingly or intentionally caused the pollution to enter the river. To have caused the pollution, giving the word "cause" its ordinary and natural meaning, is sufficient for a prosecution. (14) In Cook, as in Alphacell, it was not necessary to prove mens rea as the offences in these cases are absolute and entail strict liability. Judge Griggs commented that the Environment Agency "accept that liability is strict, and they had, in the circumstances, no option but to plead guilty".
II. Case analysis - future implications for private prosecutions of environmental crimes
Mr Cook's case sets a precedent for future private prosecutions of the Environment Agency. It may even open the floodgates to a whole range of private prosecutions under environmental law. It is conceiv-able that there could be an increase in private prosecutions of the Environment Agency, central government departments, and local authorities in relation to breach of their duties under environmental legislation. Although Mr Cook's case is not the first private prosecution under environmental law, even though it is the first against the Environment Agency, private prosecutions are relatively rare in the context of environmental protection.
There have been some private prosecutions by individuals and Non-Governmental Organisations (NGOs) (15) against water companies for pollution offences, a private prosecution by the ACA16 of British Coal for pollution from abandoned mines, (l7) and private prosecutions of wildlife crimes by the RSPB up until 1992. (18) The most prolific private prosecutor in the UK is the RSPCA who regularly brings actions relating to offences under the Wildlife and Countryside Act 1981. (19)
There is a general right to bring a private prosecution for any offence in section 6(1) of the Prosecution of Offenders Act 1985 (20) although this is seldom used in practice in relation to environmental offences. There are specific powers to bring private prosecutions for statutory nuisances under section 82 of the Environmental Protection Act 1990. According to section 82 (1), "a magistrates' court may act... on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance". The general right to bring a private prosecution is, however, restricted in certain statutes, for example in relation to water abstraction/ impounding offences under section 216 of the Water Resources Act 1991. (21)
A notable example of a private prosecution of a water company is the case of R v. Anglian Water Services Ltd (2003) (22) in which Mr Hart, an Essex fisherman pursued a private prosecution against Anglian Water for pollution of the River Crouch with raw sewage. The case resulted in a fine of £200,000 (later reduced to £60,000 on appeal).
In a number of other cases, the threat of private prosecution by environmental pressure groups such as Friends of the Earth (FoE) and Greenpeace has acted as a trigger for action by the regulatory authorities. For example, in the case of the Sea Empress pollution incident in 1996, the threat of private prosecution by FoE brought pressure to bear upon the Environment Agency which appeared reluctant to prosecute. Indeed, FoE claim that the Environment Agency's prosecution only took place as a result of their threat to bring a private prosecution. (23) The eventual successful prosecution by the Agency (R v. Milford Haven Port Authority (2000)) (24) resulted in one of the largest ever fines for water pollution. Milford Haven Port Authority was fined £4 million (later reduced to £750,000 by the Court of Appeal). (25)
FoE also consulted its lawyers on the possibility of bringing a private prosecution against the Department of Transport (DoT) because FoE were "outraged" over the Environment Agency's decision to prosecute only the Milford Haven Port Authority and the Harbour Master for the Sea Empress incident. (26)
FoE collected evidence showing that the Environ-ment Agency should have taken action against the DoT, "in the light of its legal responsibilities and role in the botched salvage operation". (27) However, FoE later decided not to pursue a private prosecution against the DoT because of the successful prosecution in R v. Milford Haven Port Authority.
One of the reasons Mr Cook found it necessary to take a private prosecution was that the regulator itself had committed an offence. However, in cases where the regulator has not committed an offence, it is debatable whether private prosecutions of environ-mental crimes should be taken at all.
The Environment Agency has urged people not to take private prosecutions against water companies and to leave the task of enforcement to them. A spokesman for the Environment Agency commented with regard to the Anglian Water case "we believe we could have mounted a stronger case and we would urge people to leave prosecutions to us in these situations." The Court of Appeal also appeared to discourage the bringing of private prosecutions in such cases. Lord Justice Scott Baker took the view that it was "unfortunate" that the private prosecutor, Mr Hart, had not allowed the Environment Agency to take over the proceedings. (28) However, the appeal had been brought against sentence rather than conviction which would seem to indicate that the prosecution had been brought meritoriously. Mr Hart's case and Mr Cook's case both demonstrate that there is a valuable role for individuals taking private prosecutions in order to enforce environmental law.
However, in most cases it is likely that the preferred course of action would be to make a claim for an injunction and damages rather than pursue a private prosecution. Most litigants seek monetary compensa-tion and do not often litigate purely for moral reasons. Therefore, in practice, it is probable that there will not be a vast amount of private prosecutions under the Environmental Protection Act 1990 and other envir-onmental legislation. Nevertheless, it is important to note that prosecutions of the Environment Agency and other regulatory authorities certainly attract more publicity than civil claims. Mr Cook's case was widely reported in the press, television and radio. (29) If he had been pursing a claim for damages the case may not have attracted so much attention.
There are many factors which discourage environ-mental pressure groups or individuals from taking private prosecutions including funding and costs issues; the need to gather and present expert evidence; and the fear of the technical aspects of preparing and presenting a criminal case. Furthermore, many of the factors which may influence the regulatory bodies in taking enforcement action, such as the relatively low penalties imposed by the courts, shape private attitudes to prosecution. However if environmental pressure groups and NGOs do not wish to pursue the prosecution themselves then they could provide the funding and resources to individuals facing similar circumstances as Mr Cook, to enable those individuals to make private prosecutions rather than civil claims. There is usually a good reason why an individual considers it is necessary to take a private prosecution. A main reason why both Mr Hart and Mr Cook decided to bring prosecutions was because the Environment Agency had failed to act quickly enough. In the Anglian Water case Mr. Hart said that he had taken out the prosecution "because he was annoyed by the attitude of the Environment Agency". (30) In the Court of Appeal, Lord Justice Scott Baker, commen-ted that "Mr. Hart thought the Agency was dragging its feet, whereas the Agency said it was gathering evidence. Mr Hart felt the Agency lacked determina-tion in discharging its responsibilities." (31) Mr Cook waited six months before bringing his prosecution against the Environment Agency and May Gurney Ltd. He told The Telegraph newspaper that "the Agency should have owned up immediately and prosecuted the contractors. But instead they did nothing." (32)
Mr Cook's case clearly shows that, in the UK, the ability to successfully prosecute some environmental crimes does not only rest with the statutory enforcement agencies. Although primary responsibility for enforcement of environment law will continue to lie in the hands of the regulatory authorities, private prosecutions of environmental crimes will probably continue to have a residual role. Mr Cook's successful prosecution may encourage other litigants to follow his example, particularly where the Environment Agency fails to act at all or fails to act promptly. Environmental pressure groups and NGOs will no doubt be interested in Mr Cook's landmark case and consider that private prosecutions are appropriate in some cases, especially where the regulator itself is at fault. As a consequence, sometimes even the water watchdog itself has to be prepared to be brought to heel.
Footnotes
(1) Exeter Crown Court, Indictment No.S20060089, S20060090.
(2) Section 4(1) of the Act provides that "any person who causes or knowingly permits to flow or puts or knowingly permits to be put, into any waters containing fish or into any tributaries of waters containing fish, any liquid or solid matter to such an extent as to cause the waters to be poisonous or injurious to fish or the spawning grounds, spawn or food of fish, shall be guilty of an offence."
(3) Figures published on the Environment Agency's website www.environment-agency.gov.uk.
(4) Paul Gainey, "Environment Agency Apologises for Fish Kill Pollution", 17 May 2006 — http://www.environment-agency.gov.uk/news/1390650?lang = _e®ion = &project status = &theme = &subject = &searchfor = &topic = &area = &month =
(5) Figures published on the Environment Agency's website www.environment-agency.gov.uk show that in 2004 there were 25,196 substantiated pollution incidents of air, land and water. Only 131 of these incidents were classed as category one, and 114 of those affected water.
(6) Section 4(3) of the Act states that "Proceedings under this section shall not be instituted except by [the Agency]... or by a person who has first obtained a certificate from the Minister that he has a material interest in the waters alleged to be affected".
(7) See note 5.
(8) Reported by BBC News Southwest. "River agency fined for pollution", BBC News, 17 May 2006, http://news.-bbc.co.uk/go/pr/fr/-/ l /hi/england/devon/4992048.stm.
(9) See note 8.
(10) Page 2F of the Official Transcript of the case (by Mendip-Wordwave (Official Shorthand Writers to the Court)). See also "River agency fined for pollution", BBC News, 17 May 2006, http://news.bbc.co.uk/go/pr/fr/-/l/hi/england/devon/ 4992048.stm. See also "River pollution fine causes embar-rassment', Mid Devon Gazette, 30 May 2006, p. 6, which comments "How embarrassing for the Environment Agency to be fined for polluting a river. If you are the organisation in charge of making sure no-one pollutes the rivers, there can't been anything worse than having to plead guilty to doing so yourself."
(11) Page 3A of the Official Transcript. Ibid.
(12) Page 4D of the Official Transcript.
(13) [1972] AC 824.
(14) See Lord Cross of Chelsea's comments on causation on page 846, Lord Salmon's on page 849 and Lord Pearson's on page 844 to 846 of Alphacell v. Woodward [1972] AC 824-849.
(15) For example, the Angler's Conservation Association
(16) Angler's Conservation Association
(17) Prosecution by the ACA under the Water Resources Act 1991 - See "Some Further Examples of the Successful Work of the ACA" at http://www.a-c-a.org/whatwedo.html. The case concerned pollution of the River Rhymney in Glamorgan, an issue the then National Rivers Authority had avoided.
(18) The RSPB has not taken a private prosecution since 1992.
(19) Maria Lee and Carolyn Abbot, "The Usual Suspects? Public Participation Under the Aarhus Convention", MLR 2003, 66(1), 80-108, at 104 note 151.
(20) Law Commission Report No. 255, "Consents to Prosecu-tion", discusses the procedural limitations on private prosecutions, 12. 1 Section 216: "(1) Without prejudice to its powers of enforcement in relation to the other provisions of this Act, it shall be the duty of the [Environment Agency] to enforce the provisions to which this section applies. (2) No proceedings for any offence under any provision to which this section applies shall be instituted except -
(a) by the [Environment Agency]; or
(b) by, or with the consent of, the Director of Public Prosecutions.
(21) This section applies to Chapter II of Part II of this Act and the related water resources provisions." – (abstraction and impounding provisions). Words in square brackets substituted by the Environment Act 1995, section 120, Sch 22, para 128.
(22) [2003] EWCA Crim 2243; LTL 1/8/2003; [2004] 1 Cr App R (S) 62 : [2004] Env LR 10.
(23) Friends of the Earth Press Release "Sea Empress Prosecution Welcomed By FOE", 13 May 1997, http:// www.foe.co.uk/resource/press_releases/ 19970513173250.html
2s
[2000] Env LR 632. LTL 17/4/2000; [2000] 2 Cr App R 423; [2000] Env LR 632.
(26) "Sea Empress: FOE Slams Environment Agency And Consults Its Lawyers Over Private Prosecution', Friends of the Earth - Press Release, 1997 http://chelus.foe.co.uk/ resource/press _releases/ 19970716153508.html
"FOE Welcomes Sea Empress Guilty Plea", Friends of the Earth – Press Release, 12 January 1999, http://chelus.foe.-co.uk/resource/press_releases/ 19990112155052.html
(27) Ibid.
(28) Paragraph 3 of his judgment: "The Environment Agency offered to take over the case but this offer was rejected by Mr Hart. This case, and others like it, should be prosecuted by the Environment Agency rather than by an individual member of the public and it is unfortunate that it was not."
(29) Other press articles on the case not mentioned above, include the following: "Environment Agency pollutes river", 18 May 2006, The Independent, p. 4; "Dead fish fine", 18 May 2006, The Times, p. 2; "Pollution Agency", 11 April 2006, The Mirror, p. 22; "Lessons learned in river pollution", 23 May 2006, Mid Devon Gazette, p. 11; "Why salmon must be protected from careless pollution", 20 May 2006, Express and Echo, p. 10; "Green agency red faced after fine for polluting river", 18 May 2006, Express and Echo, p. 9; "Agency is fined £7,500 over river pollution incident", 18 May 2006, Western Morning News, p. 9; "Environment Agency admits polluting river", by Chris Court, 10 April 2006, Press Association Newsfile, Home News section; "Environment Agency fined £7,500 for polluting river" by Chris Court, 17 May 2006, Press Association Newsfile, Home News section; "Environment Agency awaits sentence over polluting river", by Chris Court, 17 May 2006, Press Association Newsfile, Home News section; "Who will take responsibility?", 21 April 2006, Express and Echo, p. 24; "Environment Agency is guilty of polluting river", 18 April 2006, Mid Devon Gazette, p. 3; "Sort yourself out, and don't cuss!", 14 April 2006, Utility Week ; "Pollution watchdog guilty of river spill", 11 April 2006, Express and Echo, p. 8; "River polluted by agency contractor", 11 April 2006, T he Journal (Newcastle), p. 6; "Fish concreted", 11 April 2006, The Sun ; "Eco bosses polluted river", 11 April 2006, Western Daily Press, p. 2; "Environment Agency is guilty of toxic spill", 1 1 April 2006, Western Morning News, p. 8.
(30) BBC News, "Anglian Water fined over river pollution", 15 March 2002, http://news.bbc.co.uk/l/hi/england/ 1875563.stm.
(31) Paragraph 3 of his judgment.
(32) "Watchdog Facing Big Fine as Angler Sues over Pollution", The Telegraph, 11 April 2006.