JUDICIAL INTERPRETATIONS OF THE GENERAL WATER POLLUTION OFFENCES: AN INTERNAL COHERENCE PERSPECTIVE
A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy In the Faculty of Humanities
2019
MUNIRA PATEL
SCHOOL OF LAW CONTENT PAGE (84,878 words)
Contents CONTENT PAGE ...... 2 ABSTRACT ...... 6 DECLARATION ...... 8 COPYRIGHT STATEMENT ...... 8 ACKNOWLEDGMENT ...... 10
CHAPTER ONE: INTRODUCTION ...... 13 1.1 Introduction...... 13 1.2 The Evolution of Environmental and Water Law ...... 14 1.2.1 European Environmental and Water Law and Policy ...... 22 1.3 Judges and Environmental Law ...... 24 1.4 Aims of the Thesis ...... 26 1.4.1 Defining Internal Coherence...... 27 1.5 The Theoretical Framework of Immanent Critique and the Methodology of Legal Doctrinal Research ...... 32 1.5.1 Immanent Critique ...... 32 1.5.2 Methodology: Legal Doctrinal Research ...... 34 1.5.2.1 Doctrinal Research: A Critique ...... 35 1.5.3 Desk-based Research ...... 37 1.6 Thesis Structure and Content ...... 40
CHAPTER TWO: IMMANENT CRITIQUE AND DOCTRINAL LEGAL RESEARCH...... 42 2.1 Introduction...... 42 2.2 Social Critique: Immanent Critique ...... 42 2.2.1 ‘Disclosing’ type of critique’ and ‘External Critique’ ...... 42 2.2.2 Critical Theory and Immanent Critique ...... 45 2.3 The Five Stages of Immanent Critique ...... 50 2.3.1 Stage One: external criteria for evaluation ...... 50 2.3.2 Stage Two: legislative intention and benchmark ...... 53 2.3.3 Stage Three: The practical aspect of law ...... 55 2.3.4 Stage Four: The Process of Comparison ...... 60
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2.3.5 Stage Five: the ‘ought’ and the ‘is’ ...... 61 2.4 Immanent Critique as a Framework for Evaluation ...... 63 2.5 Chapter Summary ...... 72
CHAPTER THREE: ESTABLISHING INTERNAL CRITERIA ...... 74 3.1 Introduction...... 74 3.2 Legislative History of ‘Causing’ and ‘Knowingly Permits’ Contrary to Regulation 12 (1) (b) of the Environmental Permitting (England and Wales) Regulations 2016 ...... 75 3.2.1 Rivers Pollution Prevention Act 1876 ...... 76 3.2.2 Rivers (Prevention of Pollution) Act 1951 ...... 78 3.2.3 Rivers (Prevention of Pollution) Act 1961 ...... 79 3.2.4 Control of Pollution Act 1974 ...... 81 3.2.5 Water Resources Act 1991 ...... 82 3.2.6 The Environmental Permitting Regulations 2007, 2010, 2016 ...... 83 3.3 The Benchmark of Evaluation ...... 85 3.3.1 The Goal of Preventing Water Pollution ...... 85 3.4 Legislative Rationale ...... 91
CHAPTER FOUR: ALPHACELL v WOODWARD (1972): ‘KNOWINGLY PERMITS’ AND ‘CAUSING’ WATER DISCHARGES...... 97 4.1 Introduction...... 97 4.2 ‘Knowingly Permits’ ...... 100 4.2.1 Alphacell v Woodward [1972] – ‘Knowingly Permits’ ...... 101 4.2.2 Schulmans Incorporated Ltd v National River’s Authority [1993] – Constructive Knowledge .... 103 4.3 Alphacell v Woodward (1972): ‘Causing’ Water Pollution ...... 107 4.3.1. Alphacell v Woodward [1972]: Commissions and Omissions (Passive/Active Distinction) – Active Operation or Chain of Operations ...... 108 4.3.2 Alphacell v Woodward [1972]: Causation (in Fact) ...... 110 4.3.3 Alphacell Ltd v Woodward [1972]: Strict Liability ...... 114 4.3.3.1 Condemnation ...... 118 4.3.3.2 Ease of Prosecution ...... 119 4.3.3.3 Deterrence ...... 120 4.3.4 Alphacell Ltd v Woodward [1972]: Vicarious Liability ...... 131 4.4 Concluding Comments ...... 140
CHAPTER FIVE: JUDICIAL INTERPRETATIONS OF ‘CAUSING’ WATER POLLUTION: POST-ALPHACELL v WOODWARD [1972] ...... 142
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5.1 Introduction...... 142 5.2 Commissions and Omissions: ‘Active Operation or Chain of Operation’ ...... 144 5.2.1 Price v Cromack [1975] and Wychavon District Council v National River’s Authority [1993] ..... 144 5.2.2 Attorney General’s Reference (No. 1 of 1994) [1995] ...... 151 5.3 Causation (in Law): Third Party Interventions ...... 155 5.3.1 Impress (Worcester) LTD v Rees [1971] and National River’s Authority v Wright Engineering Co. Ltd [1994] ...... 157 5.3.2 CPC (UK) Limited v National Rivers Authority [1995], National Rivers Authority v Yorkshire Water Services Ltd [1995], and Southern Water Authority v Pegrum and Pegrum [1989]...... 163 5.4 Clarification of the General Water Pollution Offence of ‘Causing’: National Rivers Authority v Empress Car Company (Abertillery) Ltd [1998] ...... 171 5.4.1 The Two Point of Law ...... 172 5.4.2 Hoffmann’s Guidelines ...... 174 5.4.3 Free, Deliberate and Informed ...... 180 5.4.4 Post Empress: Environment Agency v Brock [1998] (Escape through a Latent Defect: The Hoffmann Approach) and Express Dairies v Environment Agency [2005] (Section 217 of the WRA 1991: Criminal Liabilities of Directors and other Third Parties) ...... 185 5.5 Vicarious liability: National Rivers Authority v Alfred McAlpine Homes East Limited [1994] ...... 189 5.6 Strict Liability: A Strict Approach ...... 194 5.7 Concluding Comments ...... 196
CHAPTER SIX: EXPLAINING THE MISMATCH: AN INTERNAL COHERENCE PERSPECTIVE ...... 201 6.1 Introduction...... 201 6.2 Limited Judicial Exposure to Environmental Law ...... 202 6.3 The Nature of Legal Language ...... 205 6.4 The Nature of Judging ...... 210 6.4.1 The Literal Approach to Statutory Interpretation ...... 210 6.5 The Nature of Advocacy ...... 217 6.6 Chapter Summary ...... 223
CHAPTER SEVEN: PROMOTING AND MAINTAINING INTERNAL COHERENCE ...... 224 7.1 Introduction...... 224 7.2 Redrafting Regulation 12 (1)(b) of the Environmental Permitting (England and Wales) Regulations 2016 ...... 225 7.3 The Purposive Approach to Statutory Interpretation: A Continued Judicial Commitment...... 229 7.4 Judicial Education: Environmental Guidelines and Training ...... 236 7.4.1 Environmental Guidelines ...... 236 7.4.2 Environmental Training ...... 239
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7.5 Chapter Summary ...... 247
CHAPTER EIGHT: CONCLUSION ...... 249 8.1 Introduction...... 249 8.2 Key Findings ...... 249 8.3 Future Research: Where Next? ...... 255 8.3.1 Immanent Critique ...... 255 8.3.2 External Critique ...... 256 8.3.3 Comparative Research...... 257 8.3.4 Empirical Research ...... 258 8.3.5 Environmental Sentencing ...... 259 8.4 CONCLUSION ...... 260 BIBLIOGRAPHY ...... 262
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ABSTRACT
Using the critical research framework of immanent critique, this thesis assesses judicial interpretations of the general water pollution offences under Regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016. Regulation 12(1)(b) states that ‘a person must not, except under and to the extent authorised by an environmental permit cause or knowingly permit a water discharge activity or groundwater activity’. Immanent critique has the aim of investigating and assessing the relationship between ideals and reality to measure how far the key claims, values or assumptions of a legislative provision or institution are realised in actual practice. The thesis uses the term ‘internal coherence’ to describe coherence between the legislative goals that underpin the water pollution offences of ‘causing’ and ‘knowingly permitting’ and judicial interpretations of these offences.
A critical analysis of judicial interpretations of the water pollution offences of ‘causing’ and ‘knowingly permitting’ using the lens of immanent critique complements and develops the existing water pollution prevention and environmental law literature. It illustrates the merits of assessing the relationship between ‘law in books’ and ‘law in action’ by examining the mismatch between legislative ideals and interpretative outcomes. An analysis of the relationship between the promise and performance of the general water pollution offence of ‘causing’ (and to a much lesser extent the offence of ‘knowingly permits’ due to the paucity of prosecutions) has shown that in the early 1970s, the House of Lords (now Supreme Court) supported an internally coherent interpretation of ‘causing’. During the 1990s, judicial interpretations of these water pollution prevention offence were not internally coherent. Recently, the courts have explicitly supported an internally coherent interpretation of the water pollution offence of ‘causing’.
This thesis is based on the argument that there is little or no point in introducing numerous environmental protection laws if efforts are not then made to investigate how
6 these laws operate and if their professed ideal(s) are being realised in actual practice. This thesis illustrates the practical application of the theoretical framework of immanent critique to help legal academics promote coherence within the legal system, add to discussions about the maturity of environmental scholarship, and subject judicial reasoning to critical examinations in order to encourage public confidence in legal personal and address concerns and issues that (environmental) judges may either typically share or are likely to face during the interpretative process.
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DECLARATION
No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning
COPYRIGHT STATEMENT
i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. iii. The ownership of certain Copyright, patents, designs, trade marks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. iv. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=487), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s
8 regulations (see http://www.manchester.ac.uk/library/aboutus/regulations) and in The University’s policy on Presentation of Theses
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ACKNOWLEDGMENT
First and foremost, I thank the Almighty, for giving me strength, hope and faith.
This emotionally challenging endeavour would not have been possible without the fantastic support and understanding of Dr. Carolyn Abbot and Dr. Gary Lynch-Wood. A heartfelt thank you to you both. I have learnt so much from you and feel honoured to have been a student of yours. A huge thank you to Jackie Boardman and Jane Anthony for their support too. Extra special thanks to Julie Adshead and Dr. Phil Handler for their thoroughly justified feedback.
Immense and warm thanks to my wonderful family, friends and colleagues. I am very blessed to have such kind, thoughtful and supportive people in my life. I won’t mention your names, but you know who you are.
Lastly, I thank my three beautiful children, Mariya, aged eight, Safa, aged six, and Muhammed Ziyad, aged five. I hope I am a good role model and inspiration to you. I also hope my husband, Jamil, is proud of me. x
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I dedicate this work to my dear parents, and all others like them, who believe in the education of women – regardless of . . . .
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The Prophet Muhammed (peace be upon him) said: ‘Acquire knowledge and impart it to the people.’ (Sunan Tirmidhi, Hadith 107)
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CHAPTER ONE: INTRODUCTION
1.1 Introduction
Environmental law is now a fixture in our legal landscape. Its importance to the protection of the environment, particularly waters, is well-established. The wide-ranging impact of environmental harms and misconduct can extend to the environment and all living beings. It can lead to economic concerns (such as unemployment, crop damage, clean-up costs) and loss of work time due to health impacts. It can affect physical health through food poisoning, air pollution, polluted waters, and difficulties in remediating blighted areas.1
This thesis critically evaluates the intended objectives of a central feature of environmental and water law namely, the general water pollution offences of ‘causing’ and ‘knowingly permits’ water discharges contrary to Regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016. It assesses the objective(s) of these offences against the actual practice of law. This pollution provision states that ‘a person must not, except under and to the extent authorised by an environmental permit cause or knowingly permit a water discharge activity or groundwater activity’.2 Schedule 21 (3)(1) defines water discharge activities to include: the discharge of poisonous, noxious or polluting matter, waste matter or trade or sewage effluent into inland fresh water, coastal waters and relevant territorial waters; discharge from land through a pipe into the sea outside the seaward limits of relevant territorial waters of any trade or sewage effluent; and the removal from any part of the bottom, channel or bed of any inland freshwaters of a deposit accumulated by reason of any dam, weir or sluice holding back the waters by causing it to be carried away in suspension in the waters.
1 See ‘Magistrates’ Association: Costing the Earth - guidance for sentencers (2009) < http://www.magistratesassociationtemp.org.uk/dox/Costing%20the%20Earth%20for%20MA%20with%2 0cover.pdf> accessed 23 September 2016. 2 Regulation 38 (1) states that it is an offence for a person to contravene regulation 12 (1)(b).
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This thesis has coined the term ‘internal coherence’ in order to describe congruity between the promise and performance of regulation 12(1)(b) (see below). In critically evaluating the intended objectives of the general water pollution offences to ‘cause’ and ‘knowingly permits’ against the actual practice of law, this thesis raises broader points about the relationship between legislative intentions and outcomes as well as the future development of environmental scholarship. Sections 1.2 provides a brief overview of the evolution of environmental and water law, Section 1.3 provides some reasons for subjecting the courts to critical research, and Section 1.4 presents the aims of this thesis. Section 1.5 outlines both, the theoretical framework of immanent critique and the doctrinal black letter law methodology as tools by which this thesis assesses judicial interpretations of the general water pollution offences now under regulation 12 (1)(b). Section 1.6 explains the structure and content of this thesis with reference to the eight chapters of this work.
1.2 The Evolution of Environmental and Water Law
The earliest environmental measure in the UK dates as far back as 1388 under the Punishing Nuisances which Cause Corruption of the Air Near Cities and Great Towns Act. The first systematic attempt to control the polluting effects of the industrial revolution was, however, found in the 19th Century Alkali Acts. Later efforts to protect the environment involved a mix of property, tort, planning, and public health laws. For example, the Public Health 1875 Act consolidated and amended previous national and local acts relating to public health in order to combat filthy urban living conditions that caused various health threats and the spread of many diseases. The 1875 Act also provided a code of sanitary law that related to the supply of wholesome water and prevention of pollution. This required new residential constructions to include running water and an internal drainage system, a prohibition against shoddy housing by building contractors, and a medical and sanitary officer to be employed by every public health authority to ensure that the laws on food, housing, water, and hygiene were carried out.
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This fragmented legal response to environmental protection proved wholly inadequate.3 Individuals were expected to protect themselves by bringing an action for damages or an injunction. Both options were expensive in their outcome.
The UK legislature passed an extraordinary number of environmental laws in subsequent years. This included the Smoke Nuisance Abatement (Metropolis) Act 1853 (UK’s first pollution control act), Clean Air Act 1956 (introduced smokeless zones in response to London smog), Deposit of Poisonous Waste Act 1972 (UK’s first law to control waste management in response to hazardous waste dumping), Environmental Protection Act 1990 (introduced duty of care for waste, statutory nuisance and integrated pollution control) and the Environment Act 1995 (set up agencies such as the Environment Agency to regulate businesses). Indeed, environmental law now legislates on numerous matters that range from global warming to the sustainable management of forests, and from chlorofluorocarbons and other man-made chemicals that deplete the ozone layer to the improvement in the quality of drinking waters, rivers, and surrounding seas.
Kellet usefully summarised the environmental law developments of the last three decades. He notes how environmental law has progressively broadened and grown in sophistication to regulate a far wider range of potentially harmful activities, apply a wide range of mechanisms beyond permitting controls to cover emissions trading and producer responsibility schemes, develop improved standards, and apply risk based regulation so that regulatory inventions include enforcement based on environmental risk.4 This period also saw a huge rise in the transparency of environmental law. The Aarhus Convention, for example, established environmental rights for the public, namely (i) the right of everyone to receive environmental information that is held by public authorities (access to environmental information) (ii) the right to participate in environmental decision-making (public participation in environmental decision-making)
3 Royal Commission on the Pollution of Rivers, The Rivers Aire and Calder (Third Report, Cmnd 3850, 1867). 4 P. Kellet, ‘Successes of Environmental Law over the Past 30 Years’
15 and (iii) the right to review procedures to challenge public decisions that have been made without respecting environmental law in general (access to justice).5
National efforts to protect the environment were broadly in keeping with European and international efforts. For example, in October 1972, leaders of the European Community declared that the goal of economic expansion must be balanced with the need to protect the environment. This led to many changes such as the introduction of the first of several Environmental Action Programmes and a greater willingness on the part of member states of the European Union to be more forthcoming in environmental policy making.6 Prior to the 20th Century, there were very few international environmental agreements, but changes soon emerged after this period. For example, conventions to protect commercially valuable species were reached such as the Convention for the Protection of Birds Useful to Agriculture,7 the Convention for the Preservation and Protection of Fur Seals,8 and the Convention Relative to the Preservation of Fauna and Flora.9 34 countries adopted the Convention on Wetlands of International Importance (generally known as the Ramsar Convention) in 1971. Following the United Nations Conference on the Human Environment in Stockholm in 1972, the UN established the United Nations Environmental Protection (UNEP) from which flowed a series of important conventions such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes or Other Matter (1972).10
5 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (25 June 1998)
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The environmental developments at domestic, European and International levels since the early 1970s has seen environmental law develop into a universally recognised and independent area of the law that seeks to protect both human and non-human health from a broad range of harms. Environmental law now stems from more than one source (international, European and domestic law), comprises of many guiding concepts and principles (prevention, precaution, polluter pays and sustainable development), legislates on many topics (environmental permitting, air quality, climate change, water, waste, nature conservation and waste management), and resorts to various types of liability (criminal, civil and remediation requirements) in order to protect the environment and reach established standards. It is hard to find an area of law which is now not covered by some aspect of environmental law. The key, of course, will be ‘to build on these improvements in the years ahead, learn from where we have and have not made progress and to create the right governance, market signals and interventions to ensure that we continue to do better going forward’.11
Despite the many environmental accomplishments, environmental protection is now of crucial importance to the future of mankind. Evidence suggests that the tripling of world population over the last 100 years to six billion has posed serious questions about sustainability.12 This can be linked to the limits-to-growth debate of the 1960s and 70s which posits that economic and population growth directly contributed to environmental decline and that existing levels of development could not be sustained forever.13
Evidence suggests that Europe still faces a range of persistent and growing environmental challenges. This is despite Europe’s environment and climate policies delivering substantial benefits for improving the environment and quality of life. Hans Bruyninckx, the European Environment Agency’s Executive Director, for example,
11 Above n.4. 12 Department of Economic and Social Affairs Population Division, ‘The World at Six Million’
17 highlighted the observations of the State of the Environment Report 2015 that ‘Europe is still not on track to meet the 2020 target of halting the loss of biodiversity and nature continues to be eroded’.14 Recent data show that 60% of assessed species and 77% of habitats continue to be in an unfavourable conservation status, that air pollution is still responsible for more than 400,000 premature deaths in Europe each year, and that marine biodiversity is in a poor condition across all of Europe’s regional seas in that only 7% of marine species assessments indicate ‘favourable conservation status’.15 In particular, water quality is becoming a global concern. For example, the 2017 edition of the United Nations World Water Development Report (WWDR), which explored the issue of waste water and its potential as a sustainable resource, explained how demands for freshwater are ever growing, that over 80% of wastewater worldwide (over 95% in some developing countries) is released into the environment untreated, and that water pollution is worsening in most rivers across Africa, Asia and Latin America. In 2012, 800,000 deaths worldwide were caused by contaminated drinking water, and inadequate hand-washing and sanitation facilities. Furthermore, in the seas and oceans, de-oxygenated dead zones caused by the discharge of untreated wastewater are growing rapidly, affecting an estimated 245,000 km of marine ecosystems and impacting upon fisheries, livelihoods, and food chains.16
The urgency of river pollution legislation was initially highlighted by the Royal Commissions established in 1865 and 1868 to enquire into river pollution and prevention. The findings of the Royal Commissions did not always, however, materialise as law due to the hostile response of the manufacturing industry and the anticipated difficulties in the administration of absolute standards for effluent.17 Parliamentary effort to introduce (and subsequently strengthen) the legislative protection of the water
14 Joint Nature Conservation Committee, ‘State of the Environment Reports for 2015’
18 environment can be traced back to the 1875 words that ‘the pollution of rivers is a subject of so much importance and of such growing interest, that it cannot fail to occupy their serious attention during the recess’.18 These words gradually gained strength during the 19th and 20th centuries when they were reiterated in several water pollution prevention legislation such as the Rivers Pollution Prevention Act 1876, Rivers (Prevention of Pollution) Act 1951, Rivers (Prevention of Pollution) Act 1961, Control of Pollution Act 1974 and the Water Resources Act 1991.
The virtues and importance of strengthening the protection of the water environment has also received judicial support. The classic statement by Lord Salmon in Alphacell v Woodward said that if it was held that a conviction could not be secured ‘unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred. Many rivers which were filthy would become filthier still and many rivers which were clean would lose their cleanliness’.19 More recently, Scott Baker L.J. in Hart v Anglian Water Service (2003) said that ‘River and watercourses are an important part of that environment and there is an increasing awareness of the necessity to preserve them from pollution.’20 The subject of water pollution prevention continues to be of much importance at domestic, European and international level.21
The general water pollution offences of ‘causing’ and ‘knowingly permits’ were first introduced under the Rivers Pollution Prevention Act 1876. These offences are now under regulation 12(1)(b) of the new Environmental Permitting (England and Wales) Regulations 2016.22 This amended the Environmental Permitting (England and Wales) Regulations 2010 which in turn amended the 2007 Regulations. A person guilty of the
18 Question for Pollution of Rivers Legislation, Parliamentary debates: 3rd Series, Volume CCXXVI, House of Commons, 28 July 1875. 19 [1972] AC 824, 848 (Lord Salmon). 20 ALL ER 551, Paragraph 14. 21 See UKELA, ‘Brexit’
19 offences of ‘causing’ or ‘knowingly permits’ under the Environmental Permitting Regulations is liable (a) on a summary conviction to a fine or imprisonment for a term not exceeding 12 months or both; or (b) on a conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.23 The water pollution provision is reactive in nature in the sense that it punishes the polluter after the breach has occurred although it remains proactive if it succeeds in deterring and preventing the entry of matter into controlled waters through, for example, the threat of punishment and the pitfalls of prosecution such as the impact of adverse publicity on sales and profit levels.24
Regulation 12 (1)(b) is a criminal provision. The criminalisation of the entry of matter into controlled waters thus favours a policy of criminal prosecution and punishment that could also potentially stretch to stigma and loss of profits for the defendant water polluter. There is no agreed definition of ‘environmental crime’ although Bell, McGillivray and Pederson suggest that the most obvious way for lawyers to define environmental crime is by including those acts or omissions that directly or indirectly damage the environment and which are legally prohibited. This has the advantage of being value free. Situ and Emmons also include the harm element in their definition of environmental crime: ‘[a]n environmental crime is an unauthorized act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanctions. This offense harms or endangers people’s physical safety or health as well as the environment itself’.25 Judging from the current volume and enormity of environmental law, Watson seems correct to define ‘environmental crime’ as a comprehensive subject area that can cover a wide range of activities to include ‘activities and omissions as diverse as trafficking in animals and animal products, fly-tipping, fly-posting, writing graffiti, unauthorized discharges into rivers or the atmosphere, uprooting protected hedgerows,
23 See Regulation 39 (1) of the Environmental Permitting (England and Wales) Regulations, SI 2016/1154. 24 For further discussion on deterrence, see C. Abbot, Enforcing Pollution Control Regulation, Strengthening Sanctions and Improving Deterrence (Hart Publishing 2009). 25 Y. Situ and D. Emmons, Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment (Sage 2000) 3.
20 unlicensed angling, dropping litter, damaging “listed” buildings, destroying habitats and removing protected hedgerow’.26
Regulation 12 (1)(b) falls within the regulatory technique of ‘command and control’. This regulatory approach involves state intervention, namely, detailed prescriptions of desired behaviour typically backed by criminal sanctions, government intervention, defined standards, and public agencies for regulating, monitoring and enforcing laws.27 While the command and control regulatory model for environmental protection has been described as ineffective and inefficient, and while it has been subject to a growing belief that something better needs to be devised,28 it has also however, been defined as ‘the backbone’ of pollution control laws in England. It has brought many benefits to the people and the environment. It has outlawed smogs and has resulted in air, rivers, beaches and drinking water the cleanest since before the industrial revolution.29 That said, the search for alternative regulatory tools to influence individual and corporate behaviour and the balance of stick mechanisms (for example, prosecution and sanctions) against carrot mechanisms (for example, voluntary enforcement undertakings and league tables) continues. As Chapter Six of this thesis explains, the development of alternative sanctions (civil) alongside traditional criminal sanctions and the issuing of sentencing guidelines has changed the way in which regulators handle the regulated. Regulators have adopted a more varied and sophisticated approach to compliance, enforcement, and sanctions that focuses not just on punishment but also on other outcomes such as putting things right and stopping activities. Fewer environmental prosecutions are appearing via the criminal processes because the less serious cases are now dealt with through the civil sanctions process.30
26 M. Watson, ‘Environmental Crime in the United Kingdom’ [2005] European Environmental Law Review 186. 27 B. Hutter, A Reader in Environmental Law (OUP 1999) 4-5. 28 See General Editor’s Introduction in N. Gunningham and P. Grabosky, Smart Regulation, Designing Environmental Policy (Clarendon Press 1998). 29 See Sir J. Harman, ‘Opinion’, (2004) 6.3 Environmental Law Review 141. 30 See Chapter Six.
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1.2.1 European Environmental and Water Law and Policy
The European Union has had a major impact on domestic laws.31 It has been an important vehicle in ‘pushing the government faster and further than they would otherwise have moved’ to improve its policies on many matters, particularly environmental matters.32 There was no mention of the subject of environmental protection in the original Treaty establishing the European Economic Community 1957. The chief aim of the European Economic Community (as it was then known) was economic - to rebuild Western Europe following the devastating effects of the world wars, that is, promote throughout the Community a harmonious development of economic activities to achieve the four fundamental freedoms under Article 3 - free movement of goods, capital, services, and people.33
The breakthrough for environmental protection came at the Paris Conference of the Heads of States and Governments (1972) when the impact of EU economic policies and aspirations on the environment were clear to see: ‘Economic expansion is not an end in itself … particular attention will be given to intangible values and to protecting the environment’.34 The Single European Act 1986 amended the 1957 Treaty, adding a whole new title on environmental protection and environmental law-making powers through what is now Articles 191 to 193 in the Treaty of the Functioning of the European Union (the Lisbon Treaty). The Treaty of the European Union (the Maastricht Treaty) also recognised environmental policy as one of the EU’s key activities where Article 3 provided that the EU shall work for the sustainable development of Europe. However, the Union’s ad hoc, inconsistent and reactive approach to the treatment of water issues was recognised in 1988 when a Frankfurt ministerial seminar on water reviewed existing legislation and found areas for improvement. This unique event in the EU’s water policy
31 Van Gend en Loos (case 26/62), affirmed in Costa v Enel (case 6/64), and taken further in Simmethal SpA (case 106/177). 32 Mr Hughes, HC Deb 12 July 1961, vol 194, col 1249-88, 1249. 33 Article 2 of the Treaty of Rome 1957. 34 E.C. Commission, 6th General Report (1972) 8.
22 resulted in an agreement to expand and intensify the EU’s policy and legislation for protecting and managing water resources, by identifying six areas of work for the Commission: ecological quality of water surfaces, waste water treatment, dangerous substances, diffuse sources, water resources, and integration.35 During the mid-1990s, the Commission (who had already been considering the need for a more global approach to water policy) challenged the fragmented approach to water regulation (particularly in terms of its aims and means) after accepting requests for a single piece of legislative framework from the European Parliament’s environment committee and the Council of environment ministers.36
European water policy, particularly its recent restructuring, reflected the 19th century sentiments for the better protection of waters. The Water Framework Directive (WFD), replaced much of EU’s water related legislation.37 The WFD echoed and validated the essence of the general water pollution offences of ‘causing’ and ‘knowingly permits’. Paragraph 22 of the Directive, for example, stated that the WFD is to contribute to the progressive reduction of hazardous substances into water, and Paragraph 23 confirmed the necessity of the common principles in coordinating Member States efforts to improve the protection of community waters in terms of, amongst other things, quantity and quality and sustainable water use.
Having outlined the evolution of environmental and water law at domestic, European and international level, it is necessary to explain why judges have been chosen as the subject of this research. Although the Environment Agency is the primary body in England and Wales responsible for regulation 12(1)(b) (for they have the responsibility and powers to inspect operations, investigate pollution incidents, and take enforcement action against suspected polluters), this thesis focuses not on the Environment Agency
35 C.D. Byrne, Community Water Quality Policy for the Nineties, Report EUR 12156 EN, Commission of the European Communities (1989) 7. 36 ibid. 37 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] Official Journal of the European Union L 327..
23 but the courts as the subject by which this thesis assesses the actual operation of the general water pollution offences relevant to this thesis.. There are compelling reasons for subjecting the courts to the kind of critical research advocated in this thesis.
1.3 Judges and Environmental Law
One important justification for assessing the work of the courts is that judges play an influential role in interpreting legislation, promoting desired behaviour, sentencing offenders, establishing precedent, shaping future cases when questions of law arise, and forging a relationship between legislative promises and interpretative outcomes.38 In the context of environmental law, judges have a specific role to play in the effective implementation of legislation by ‘integrating emerging principles of law within the holistic paradigms of sustainable development [and] providing a coherent and comprehensive strategy for integrating diverse sectoral laws into a cross-sectoral approach’.39 The need to reflect on and review the work of the courts is also in the fact that judges are spoken as though they are a group within the court and judicial structure when in fact there are a variety of judges that draw on different levels of hierarchy and experience when disposing of case law. There also lies the practical reality that judges are humans and not machines. They do not feed the legislation and rules of interpretation in at one end and have a ‘correct’ reading of legislation at the other end.
This work advocates the importance of assessing judicial environmental decision making. Since the 1970s there has arguably been an increasing expectation on judges to understand and deal with a wide range of detailed environmental policies, principles, decisions and objectives that now fall within the realm of environmental law. The
38 Much is written about the role and value of the courts. See for example D. Benton and J. Sheldon- Sherman, ‘What Judges Want and Need: User-Friendly Foundations for Effective Judicial Education’ (2015) Journal of Dispute Resolution 23; J. A. Griffith, The Politics of the Judiciary (5th Edition, Frontana Press 1997). 39 G. Rose, ‘Gaps in the implementation of Environmental Law at the National, Regional and Global Level’
24 enormity and importance of the subject matter was summed up by Viscount Massereen when he said that ‘Environment (with a capital ‘E’) is a word which has only recently come into prominence on a national scale. Previously, one’s ‘environment’ had a small ‘e’ and was a much more personal thing. Now, however, ‘the Environment’, with a capital ‘E’ covers a multitude of things: from the air we breathe to the water we drink; from the noise of traffic to the effluent of factories. Having discovered the Environment, we must now protect it’.40
Devlin’s explanation of the four uses of case law further advocates the importance of assessing judicial interpretations of key environmental offences such as ‘causing’ and ‘knowingly permits’. The first explanation refers to the role of case law in achieving uniformity in judicial decision-making that society demands. The second is that case law provides the rules for ‘the rank and file’ which within the judiciary filters down to the deputy recorder and the clerks to the justices, and outside the judiciary, it filters down to administrative personal such as solicitors and policemen. Devlin’s third explanation for the use of case law is the judiciary’s account to the nation of the way in which judges are using their powers. This makes criticisms and change possible. Finally, Devlin proposed that case law serves as a source of judicial strength, that is, while every judge must be ready to act on his or her own, judges are not by nature autocratic and need the protection and support of the law.41
These factors collectively provide a compelling case for critically investigating judicial interpretations of (environmental) laws. Judges must possess the requisite skill and knowledge to dispose of environmental case law, especially if their decision making has far reaching implications for many including members of the public as well as the internal coherence of the legal system. Critics may, however, argue that the courts should not be subject to critical analysis because it implies that judges are not capable of undertaking their duties and that there exists little confidence and trust in their ability to discharge
40 HL Deb 27 November 1973, vol 347, cols 11-108, 88. 41 P. Devlin, The Judge (OUP 1979) 180-181.
25 their duties. There is also a possible fear on the part of the courts that the government will somehow curtail their freedom if there is greater openness and transparency about their work. Critics may argue that the courts should not be subject to critical analysis also because this might result in a ‘concomitant increase in the risk of inappropriate attacks on judges’, especially because the judiciary is arguably the weakest branch of the state and have ‘no influence over either the sword or the purse ... [and] neither FORCE nor WILL, but merely judgment’.42 Yet the arguments against insulating judges from critical research are strong. There must be confidence in the skill and knowledge of judges and their ability to be fair in the interpretation and application of the law given their central role in delivering justice. Furthermore, subjecting judges and judicial reasoning to critical examination encourages public confidence in legal personnel and processes, offers viable grounds for reform, and, more importantly, identifies and connects with the concerns and issues that environmental judges may either typically share or are likely to face – but may be reluctant to admit to.
1.4 Aims of the Thesis
There are five aims of this thesis:
Critically evaluate immanent critique as a theoretical framework for examining the internal coherence of regulation 12(1)(b) with specific reference to judicial interpretations;
Identify the benchmark against which the general water pollution offences in regulation 12(1)(b) can be evaluated;
42 See Lord Neuberger ‘Judge not, that ye be not judged’: judging judicial decision-making, F. A. Mann Lecture (2015) Para. 19-21.
26
Analyse the relevant case law as a means of assessing of the existence of internal coherence;
If there is evidence of internal incoherence, explain gap(s) between promise and performance; and
Identify possible steps for either remedying or maintaining the relationship between the legislative intentions and interpretative outcomes of regulation 12(1)(b).
1.4.1 Defining Internal Coherence
This thesis assesses judicial interpretations of the water pollution offences of ‘causing’ and ‘knowingly permits’ in order to determine whether judges have realised the legislative goal of water pollution prevention during the interpretative process. The case law has fundamentally fallen within one of the four key areas of the criminal law namely actus reus (commission and omission and causation), mens rea (constructive knowledge), strict liability, and vicarious liability. This thesis has coined the term ‘internal coherence’ to describe compatibility between the theory and practice of the water pollution offences that this thesis is concerned with.
To determine whether the case law falling within the four key areas of the criminal law can be described as internally coherent, this work adopts four indicators of evaluation. The first indicator asks whether the pollution offences were given a broad or narrow interpretation by judicial bodies. Narrow interpretations of the law ‘would reduce the legislation to futility’ according to Viscount Simon L.C in Nokes v Doncaster Amalgamated Collieries, Ltd.43 The reverse would be true of broad interpretations as indicated in Lord Salmon’s analogy in Alphacell v Woodward that a person may ‘deliberately smash a
43 [1940] AC 1010, 1022.
27 porcelain vase; he may handle it so negligently that he drops and smashes it; or he may without negligence slip or stumble against it and smash it. In each of these examples, no less in the last than in the other two, he has caused the destruction of the vase’.44 The second indicator of internal coherence draws on the judgments of the courts to identify whether judges made express reference to the legislative goal of water pollution prevention. This is one of the surest and direct ways by which the courts can endorse the rationale and purpose for which the pollution offences to ‘cause’ and ‘knowingly permits’ were introduced. The third indicator of internal coherence takes a wider look at case law to see if judges referred to the broader environmental principle of prevention. This indicator closely reflects the intention of preventing the entry of matter into controlled waters so consistently advocated by the legislature since 1876. It also reflects the general aim of prevention so closely associated with the criminal law – the principal instrument by which the law seeks to protect controlled waters from the entry of polluting matter. The fourth indicator of evaluation, unlike the first three, is subjective because it relies on the researcher to assess the overall character of the case to determine whether the judicial interpretation of the pollution offence was on the whole in favour of the defendant water polluter or the goal of water pollution prevention.
These indicators can be articulated more precisely by saying that there are three key considerations that will be taken into account to determine whether judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ were coherent with the goal of water pollution prevention. The first involves a textual consideration of the words used by judges, the second focuses on legislative purpose (what the framers of the legislative provision intended), and the third indicator of internal coherence is what this thesis calls ‘structural considerations’ (the nature and character of the case taken as a whole). Indeed, this thesis originally deployed the term ‘effective’ rather than ‘internal coherence’ but it was rejected due to its ambiguity. ‘Effective’ is an ambiguous term because it is used in various disciplines and contexts. In social economics, for example, ‘effective’ means welfare optimisation, the efficient and
44 [1972] AC 824, 847.
28 optimal use of resources and resource allocation. In business economics, ‘effective’ means profit maximisation, and in social anthropology, it means the enhancement of ‘the good life’ through meaningful work, affinity, and fairness in the distribution of political and social gains.45
It will be gleaned from the five aims of this thesis that the originality of this work is in the immanent critique of the general water pollution offences of ‘causing’ and ‘knowingly permits’. This work advances current scholarly literature relating to these offences by identifying and bringing together various aspects of these offences that have not yet been comprehensively or collectively explored by academics. This includes the legislative history, rationale, and purpose that underpins the offences of ‘causing’ and ‘knowingly permits’ water discharges, and an evaluation of the relationship between the concept of internal coherence notion and key legal doctrines (such as strict liability, vicarious liability, statutory interpretation, and judicial precedent).
The key issue posed in this thesis concerns the relationship between legislative intentions and judicial interpretative outcomes to understand the link between the theory and practice of law, and between law in books and law in action. An understanding of this relationship will help identify incoherence within legal structures and also explain why and how existing practices may sometimes deserve to be replaced by new ones,46 particularly if taken for granted conceptions exist about ‘the relationship between human beings and their environment’.47 The broader issue that this thesis deals with concerns the general perception about the maturity/immaturity of environmental law scholarship. Has environmental law reached a state of maturity where frank discussions are taking place about the way in which laws are operating in actual practice? Have environmental academics taken a hard look at what legal environmental personnel (such
45 W. Landes and R. Posner, The Economic Structure of Tort Law (Harvard University 1987). 46 C. R. Sunstein, ‘On the Expressive Function of the Law’ (1996) 144 University of Pennsylvania Law Review 2021, 2031. 47 ibid, 2024.
29 as judges, enforcement officials and environmental lawyers) do, how they do it, and why they do it?
This work does not seek to belittle the very many environmental law accomplishments witnessed since the late 1960s. It argues, however, that environmental and water law scholars initially played a limited role as far as doctrinal scholarship was concerned. They were primarily interested in documenting, commenting and analysing the environmental laws that were being produced by the legislature and the courts. During the early days of environmental law, it was therefore, reasonable for environmental scholars to conduct doctrinal research that merely sought to identify and elucidate the continuous and ever expanding environmental laws. Nowadays, the demand for the maturity of environmental law is strong not only due to the challenges that now face valuable environmental resources but the fact that many environmental provisions have been on the statute books long enough to warrant and justify investigations into their actual operation. This thesis argues that over time, this role must evolve because it is only when environmental scholars engage in constructive debate that ‘the difficulties inherent in the subject can be met head on and it can achieve its potential as an academic specialism’.48
Consider the following views of Tarlock, Little, Fisher, and Lees. They support this work’s argument for promoting the maturity of domestic environmental scholarship. Tarlock argues that environmental law is still undeveloped because its rapid growth has meant that ‘it enjoyed the luxury of skipping the stages of debate over fundamentals and incremental growth and acceptance’.49 Little, who endorses and adds to Fisher et al’s ‘hard but justified message’ that environmental law scholarship is still perceived by many in the field as immature,50 suggests that environmental scholars should think more closely about what can be learnt from methodological debates in the legal mainstream
48 Above n.46. 49 D. Tarlock, ‘Is there a There There in Environmental Law’ (2004) 19 (2) Journal of Land Use, 213, 217. 50 E. Fisher, B. Lange, E. Scotland and C. Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 (2) Journal of Environmental Law 213.
30 in order to develop the environmental discipline. Little locates environmental law at the margins of the wider legal academy before ‘exploring the ways in which insights from the environmental humanities and sciences have the potential to invigorate and mature environmental law by creating exciting new contexts for the development of interdisciplinary legal methods’.51 He develops a meta-level concept of UK environmental scholarship envisioned as a ‘legal space’ where at the core of which is research into activities of judges, courts and legislators and the analysis of legal principle. Lees develops the discussion on the immaturity of environmental law by asserting that some scholars now believe that ‘traditional forms of scholarship are inadequate in the face of the changing global climate’ 52 and are consequently seeking a ‘more conscious research focus on the efficiency and effectiveness of the environmental system as a whole’.53 In arguing that environmental scholarship must aim to improve the quality of environmental law from many perspectives other than from a purely environmental protection perspective, Lees explains this immaturity by reference to the haphazard and immature application of environmental law, as well as environmental issues not being presented in well-defined boxes (compounded by the problem between global and local governance).54 Indeed, these views about the immaturity of environmental law relate to the English legal speaking. These views are not exclusive to this jurisdiction. Speaking of the Canadian legal scholarship, MacLean, Doelle and Tollefson have, for example, said that this is a critical and demanding time for Canadian environmental scholarship. There is a need for more environmental scholars to critically assess environmental law jurisprudence and promote theory and interdisciplinary collaboration.55
One possible way of promoting the maturity of legal environmental scholarship is by creating a body of scholarly knowledge and understanding that is transparent, accountable, and critical of environmental laws. This work adds to the maturity of environmental law by investigating judicial interpretations of the general water pollution
51 G. Little, ‘Developing Environmental Law Scholarship’ (2016) 36 (1) Legal Studies 48, 73. 52 E. Lees, Interpreting Environmental Offences: The Need for Certainty (Hart Publishing 2017) 3. 53 ibid. 54 Above n. 52. 55 J. Maclean, M. Doelle and C. Tollefson, ‘The Past, Present and Future of Canadian Environmental Law: A Critical Dialogue’ [2015] Lakehead Law Journal 79, 100.
31 offences of ‘causing’ and ‘knowingly permits’ using the notion of internal coherence and the research instruments of immanent critique and the doctrinal black letter law approach. This work refers to the legislative goal that governs the water pollution offences of ‘causing’ and ‘knowingly permits’ as a basis from which to assess the ability of judges to realise this goal during the interpretative process. This research idea adds to the maturity of environmental laws because it gives a useful insight into what should be happening but what is actually happening.
Section 1.5 briefly outlines immanent critique as a theoretical framework of critical research and the doctrinal legal research as a methodology by which this thesis adds a deeper level of understanding to the subject of water pollution prevention. Indeed, immanent critique is the key instrument by which this thesis assesses judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ while the doctrinal research approach is utilised during certain stages in the application of immanent critique.
1.5 The Theoretical Framework of Immanent Critique and the Methodology of Legal Doctrinal Research
1.5.1 Immanent Critique
In basic terms, immanent means internal. Immanent critique aims to examine consistency and internal ‘fit’ by assessing legislative provisions or institutions against their implicit and explicit claims.56 If the issue of ‘what is being done’ is inconsistent with ‘what ought to be done’, it becomes necessary to first consider plausible explanations for the mismatch and then identify ways to narrow or eliminate the gap between the two. This work applies immanent critique using five stages. It undertakes the process of immersion, identifies the benchmark, explains what has happened in actual practice,
56 M. V. Wrenn, ‘Immanent Critique, Enabling Myths, and the Neoliberal Narrative’ [2015] Review of Radical Political Economic 1, 12.
32 compares the previous two stages of immanent critique, and explores the possibility of reform if stage four of immanent critique discloses a gap between promise and performance.
The European tradition of critical legal theory has described immanent critique as essential in their programme for establishing the nexus between legal and social structures. European Critical theorists have argued that the underlying values of openness and accountability of public decision making associated with the liberal rule of law can form the criteria by which to judge the actual performance of constitutional and administrative law. Indeed, it is by insisting that existing laws give better effect to the values of openness and accountability, that enables European critical theorists of law to legitimately advocate legal and social change without going beyond the values of the theory that they seek to criticise.
Myrdal’s American Dilemma (1944) is a straightforward example of the application of immanent critique by critiquing society using its ideals.57 Myrdal argued that the American Dilemma was an illustration of a moral dilemma in that there was a strong conflict between values that the Americans professed to hold sincerely and the specific and actual treatment of black Americans. With the ‘American Creed’ as the spirit of modern democracy (The American Creed, a set of humane ideals promoting individual rights, and which involved the ideas of liberty and equality and property), America pledged to be committed to the ideals of justice and equality of opportunity. America did not therefore, believe that blacks were treated less favourably than whites. Myrdal, however, provided considerable evidence to show that ‘Americans did not live up to these morals’ and that there was a clear difference in the treatment of black and white Americans.58
57 See G. Myrdal, An American Dilemma (Harper and Row 1944) 3-12. 58 S. Pressman, ‘An American Dilemma: Fifty Years Later’ (1994) (2) Journal of Economic Issues 577.
33
This thesis applies immanent critique using five stages to investigate the operation of a specific piece of environmental legislation against its professed legislative goal in order to assess whether the law lives up to expected ideal(s). It first excludes external criteria of evaluation to gain an insight into the stance of a typical minister advocating and establishing the legal foundation and underpinning for the general water pollution offences to ‘cause’ and ‘knowingly permits’ (stage one). It then establishes the standards that these water pollution offences seek to attain if they are to legitimise their existence (stage two). This thesis then considers the practical operation of the relevant legislative provision, namely judicial interpretations of the offences of ‘causing’ and ‘knowingly permits’ (stage three). The previous two stages of immanent critique are compared in order to assess the degree of compatibility between promise and performance (stage four). If discrepancies are identified, possible explanations and options for minimising or eradicating the gap are advanced (stage five).
1.5.2 Methodology: Legal Doctrinal Research
The word ‘doctrine’ derives from the Latin noun ‘doctrina’ to mean instruction, knowledge or learning. It refers to legal concepts and principles of all types whether they derive from case law or statutes.59 The term ‘doctrinal’ is closely linked to the doctrine of judicial precedent because ‘legal rules take on the quality of being doctrinal because they are not just casual or convenient norms, but because they are meant to be rules which apply consistently and which evolve organically and slowly’.60
The methodology of doctrinal research is commonly deployed by legal researchers to identify legal rules typically found in statutes and case law on any given issue. The research question takes the form of asking ‘what is the law?’ because this methodology of doctrinal research seeks to identify and understand how legal doctrine has developed
59 See T. Hutchinson and N. Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 (1) Deakin Law Review 83, 84. 60 ibid.
34 and applied by the courts rather than explain, predict or understand human behaviour. Doctrinal research is also known as the black letter law approach that takes its name from the tendency of legalistic approaches to concentrate exclusively on the ‘letter of the law’, on the black letters printed on white paper. Salter and Mason describe this approach as one that aims to provide a detailed and technical commentary and systematic exposition of legal doctrine in order to gather, organise, and describe legal rules, and also comment on the emergence and significance of the official legal sources containing these legal rules.61 Cheffins similarly described the black-letter approach as the systematic categorisation, arrangement and exposition of legal rules (doctrine) supported by commentary.62
This work utilises doctrinal research primarily during stage three of immanent critique. This stage of immanent critique undertakes the practical operation of the general water pollution offences of ‘causing’ and ‘knowingly permits’, namely, how judges have interpreted these offences. Stage three of this thesis reflects Singhal and Malik’s three steps in doctrinal research by analysing and unpacking legal issues to identify those requiring further investigation, determining the relevant rules or rules of law applicable to specific issues, and analysing the facts in terms of the law.63
1.5.2.1 Doctrinal Research: A Critique
In principle, anyone wishing to identify and understand specific areas of the law can consult relevant Acts of Parliament and case law. In practice, however, this is likely to prove impossible if the subject area is governed by a plethora of primary legal materials or fast developing and changing rules. One advantage of doctrinal research is that it
61 M. Salter and J. Mason, Writing Law Dissertations. An Introduction and Guide to the Conduct of Legal Research (Pearson and Longman 2007) 46. 62 See B. Cheffins, ‘Using Theory to Study: A Company Law Perspective’ (1999) 58 (1) Cambridge Law Journal 197, 198. 63 See A. K. Singhal and I. Malik, ‘Doctrinal and Sociolegal Methods of Research: Merits and Demerits’ (2012) 2 Educational Research Journal 252, 256.
35 synopsises detailed areas of the law so that the law comes through in a simple and unqualified manner without expecting the legal researcher to reinvent the wheel ‘by superimposing their own system of classification and order upon the previous wilderness of case law and statutory provisions.’64 Another advantage of doctrinal research is that it helps support critical research approaches such as immanent critique in order to then move the law into a higher level, offer new insights about law in action, and ‘shed new light from an unexpected angle on an existing problem’.65 Doctrinal research can, however, be accused of providing sketchy descriptions of legal reality because in reality the law is governed by many different perspectives and information. To portray the law as a mere compilation of technical definitions, concepts, and legal principles is to restrict the attainment of new and critical knowledge through the isolated and fragmented treatment of legal issues, principles, policies, and practices. As this thesis illustrates, the doctrinal approach to legal research is unable to expose the social, contextual, political, economic and moral perspectives that govern the general water pollution offences of ‘causing’ and ‘knowingly permits’ because it ignores many notions such as internal coherence, legislative benchmarks, theory and practice, and law in books and law in action.
To summarise, this thesis adopts immanent critique and the methodology of doctrinal research to assess judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ contrary to regulation 12 (1)(b) of the Environmental Permitting (England and Wales) Regulations 2016. Immanent critique and doctrinal research are distinct instruments for legal research, but they can be reconciled for the purpose of this thesis. Together, immanent critique and the black letter law approach help challenge taken for granted assumptions about statutory interpretation and legal reform,66 promote critical original understanding of the chosen water pollution provision, and investigate legislative provisions using historical (the legislative development of the offences of ‘cause’ and ‘knowingly permits’), descriptive (identifies
64 Above n. 61. 65 J.B.M. Vranken, ‘Methodology of Legal Doctrinal Research’ in M.A.A. Hoecke (ed) Methodologies of Legal Research. Which Kind of Method for What Kind of Discipline? (OUP 2011) 111. 66 See P. Goodrich, A Critical Introduction to Legal Method and Technique (Blackwell 1986) 84.
36 the nature and scope of the legal principles as defined by the courts) and analytical perspectives (critiques legislation using the notion of internal coherence).
1.5.3 Desk-based Research
The application of immanent critique and doctrinal research in this work is supported by an array of authoritative desk-based materials. This includes reports from Royal Commissions Law Reform Commissions and/or Parliamentary Committees recommending the enactment of a statute, Government policy papers (Green and White), studies or enquiries produced by non-government bodies at the time at which the relevant statutes were enacted and relied on by the Government of that day, ministerial statements pertaining to any given bill, Parliamentary debates, and case law judgments.
This thesis searches law libraries and the internet. These inexpensive, readily accessible, and quick methods of data collation will offer a helpful as well as the only place to start the research process. Of course, desk based research presents its own challenges in that neither does the written nature of documents allow the researcher with the opportunity to ask the writer ‘what do you mean?’ nor does it offer useful clues about the weight of the author’s argument because nuances of tone of voice or facial expression are lacking. Pearce agrees with this point that it is never easy expressing ideas in words because that which seems to have been clearly explained by the writer may not be to the reader. Some of the difficulties that confront both writer and reader of any document (which are all magnified in relation to legislation) include the possibility that the writer may have assumed that the reader knew more than was in fact the case and as a result the document may be stated too succinctly or abstrusely. The document may be concerned with something such as a mathematical calculation that does not readily lend itself to a description in words. The idea may be so complex that it requires numerous statements, qualifications, exceptions and so on to set it out. Or the writer may not have foreseen all
37 the subtle variations of human conduct in relation to the topic in the document and thereby not have provided for some activity.67
Despite the potential limitations of using desk-based materials, this method of data collation is important in helping to discharge several tasks dictated by immanent critique such as the rationale for and manner in which the general water pollution offences of ‘causing’ and ‘knowingly permits’ have been judicially interpreted, as well as the need for reform if discrepancy between promise and performance is identified in this work. What is more, for the purpose of this thesis, desk-based research is easier to access than empirical research, a method of data collection that gathers information through experience, observation or experiment because the emphasis is on experimentation or direct observations and perceptions (evidence) to test a hypothesis. Unlike the desk- based researcher, the empirical researcher does not draw on secondary sources in order to understand the operation and effects of the legal world. Instead, they watch and listen to what others say and do rather than interpret and/or reinterpret existing materials in order to gain an understanding of the ‘lived experience’ of the relationships within and between various institutions and people to different contexts, populations, settings, cultures, policies and practices.
This thesis has rejected empirical research in order to investigate judicial interpretations of the general water pollution offences to ‘cause’ and ‘knowingly permits’ because it is highly unlikely that empirical research can generate the required information. For example, the paucity of environmental prosecutions is likely to make sample formulation difficult. It could take years before a point of law reaches the courts or receives a final outcome as, for example, in Alphacell v Woodward where the case reached the House of Lords on the 3rd May 1972 even though the breach was first discovered by enforcement officials on the 25th November 1969.68 That said, Prez’s study of how 25 corporate environmental defendants sought to impose their own meaning on the offence with
67 D.C. Pearce, Statutory Interpretation in Australia (Butterworths 1974) 1. 68 [1972] AC 824.
38 which they were charged suggests that the paucity of environmental prosecution does not necessarily hinder sample formulation.69
Empirical research to investigate judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ was further rejected because there was a risk that court room access would prove difficult if legal personnel (such as judges) were reluctant to expose the reality and operation of court room settings. There is the potential fear that empirical researchers ‘are liable to abuse the privilege of research access in order to attack groups or institutions which they have long viewed in a critical light’.70 Even if court room access did not pose a problem, there would be much pressure on the researcher to: respect court room etiquette by for example remaining silent even though the research would be enriched by asking questions; competently immerse within and match the people in the research environment by creating the right impression through dress, speech and code of conduct; and manage conflicting opinions if data that is perceived as significant to the empirical researcher is dismissed by the judge or court room personnel on the grounds that it is sensitive, mundane, insignificant, or irrelevant.
Despite these possible limitations of empirical research, the value of empirical research has been advocated by many. This includes Legal Realists such as Clark, Douglas and Moore,71 as well as prominent scholars such as Judge Posner and Professors Bok, Friedman and Schuck. They echo Pound (1910) who urged legal scholars to complement doctrinal and theory scholarship with studies of law in action.72 Schuck also advocated the need to make greater use of empirical research even though he recognised that empirical research has always been something of an oxymoron because the ‘golden age’ of empiricism has never really dawned. He suggested that empirical research would
69 See P. de De Prez, ‘Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecutions’ (2000) 65 (1) Journal of Environmental Law 65. 70 See F. Cownie and A. Bradney, The English Legal System in Context (Butterworths 1996) 171. 71 See J. H. Schlegel, ‘American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore’ (1980) 29 Buffalo Law Review 195, 200-201. 72 See R. Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12, 15.
39 promote a more refined understanding of various disciplines, improve the quality of legal theories by undermining or verifying the assumptions on which the models of the legal culture are based, and break the ‘suffocating circle of self-referential discourse that passes for intellectual dialogue’ by enlarging the legal scholarship audience to include non-lawyer scholars with an interest in how legal institutions actually function, and present judges and other decision makers with ‘more than our subjective preferences dressed up as theory or doctrinal analysis’.73 While acknowledging Friedmen’s point that empirical research is ‘hard work’ that forces legal scholars to confront a different set of obstacles requiring ‘more than the traditional legal reasoning and analytical skills that law schools impart to their students and law faculties’, Heise echoes Schuck by arguing that empirical research makes the legal system more accessible and efficient, enhances the persuasiveness and influence of legal theory, and makes the development of good theory easier. Getman further advocates the value of empirical research, that it is ‘enjoyable’ to talk to people, ‘exciting’ to discover something previously unknown, and ‘useful’ to have a different vision from others.
1.6 Thesis Structure and Content
This work assesses judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ through the application of five stages of immanent critique. Chapter Two undertakes stage one by identifying and setting aside external or extrinsic norms, values, claims and beliefs that do not relate to the relevant water pollution offences. Chapter Three undertakes stage two by establishing the legislative intentions by which judicial interpretations of the general water pollution offences will be measured against. Chapters Four and Five simultaneously undertake stages three and four of immanent critique. Stage three identifies judicial interpretations of the offences to ‘cause’ and ‘knowing permits’ and stage four compares stages two (legislative intentions) and three (practice) in order to analyse the degree of coherence between
73 P.H. Schuck, ‘Why Don’t Law Professors Do More Empirical Research?’ (1989) 39 Journal of Legal Education 323, 334-335.
40 legislative intentions and interpretative outcomes. After the leading authority of Alphacell, judicial interpretations of the offence to ‘cause’ the entry of matter into waters fluctuated from one case to the next with the consequence that the relevant legislative goal was realised in some but not all cases. In view of this incoherence, Chapter Six deals with the first part of the fifth stage of immanent critique by explaining the mismatch identified in Chapter Five, and Chapter Seven deals with the second part of the same by exploring some options for both, addressing incoherence and maintaining coherence between ideals (see Chapters Three) and outcomes (See Chapter Four and Five) respectively. Chapter Eight summarises the key findings of this thesis and their implications. It also proposes a future research agenda that builds on this work’s argument as to the importance of critical environmental scholarship using new ways of assessing and understanding environmental laws.
To summarise, this thesis makes an original contribution to legal scholarship because existing literature has not assessed judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ using immanent critique, the notion of internal coherence, or the indicators by which this thesis assesses the relationship between law in books and law in action. This work broadens our understandings of the general water pollution offences by providing an original critical dimension from which to understand the chosen topic and add to the maturity of environmental scholarship.
41
CHAPTER TWO: IMMANENT CRITIQUE AND DOCTRINAL LEGAL RESEARCH
2.1 Introduction
This thesis uses immanent critique in order to critically evaluate the intended objectives of the general water pollution offences of ‘causing’ and ‘knowingly permits’ contrary to regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016 against the practice of law. This Chapter describes the research instruments of immanent critique as well as the black letter law approach to justify their suitability and necessity in delivering the aims of this thesis. Section 2.2 explains the meaning and origins of immanent critique, Section 2.3 describes the stages and application of immanent critique to this thesis, and Section 2.4 highlights some strengths and limitations of immanent critique. In defending this theoretical framework as a method of generating original legal knowledge and literature, this thesis agrees with Sabia that the potential for ‘immanent critique is always present, and the penchant for it, and presence of it, should never be overlooked or dismissed’.1
2.2 Social Critique: Immanent Critique
2.2.1 ‘Disclosing’ type of critique’ and ‘External Critique’
Before explaining the meaning of immanent critique as a form of social critique, it is necessary to briefly explain the alternative forms of social critique - ‘disclosing’ type of critique and external critique. This will help explain the unsuitability of these research approaches to this thesis and why, more importantly, immanent critique is most suited in delivering the aims of this thesis.
1 D. Sabia, ‘Defending Immanent Critique, Political Theory Online’ (2010)
42
A disclosing type of critique tries to promote a new way of seeing social reality and bringing change in judgements and evaluations without using any specified standard of critique.2 In describing this type of critique as one where the ‘view of social reality is so changed by the radically new description that our value beliefs cannot remain unaffected either’,3 Honneth explains how specific linguistic resources such as narratives, suggestive metaphors, and strategic exaggerations can help change value beliefs by making various activities appear in a different light.4 Indeed, it is the absence of criteria that makes a disclosing type of critique highly unsuitable for this thesis, that is, the purpose of this thesis is to assess judicial interpretative outcomes with reference to the legislative purpose that the pollution provision has professed to attain.
‘External critique’ assesses the relationship between intentions and outcomes using some pre-given valid conceptual yardstick as the benchmark for evaluation such as cost- efficiency, rationality and welfare maximization.5 A provisional definition of external critique is ‘a form of engagement that superimposes the normative standards of the legal scholar upon the ‘target’ of legal critique, and then assesses this target by the extent to which it conforms to these criteria’.6 A more precise definition of external critique is by Kaupinnen. A universalist external critique involves the critic appealing to a standard of critique deemed valid for everyone (across time and place) whereas an ethnocentric external critique describes the external critic that assesses phenomena in terms of his/her own factually accepted standard of critique (conceding that what is factually accepted is determined by the society or culture in which the external critic partakes and lives in).7 Kaupinnen argues that the problems of universalist rather than ethnocentric critique have seen some reject the idea of normative critique leading instead to normative scepticism.8 An example of external critique is ‘where a purely jurisprudential
2 A. Honneth, Disrespect, The Normative Foundation (John Wiley and Sons 2014). 3 See A. Honneth, ‘The Possibility of a Disclosing Critique of Society: The Dialectic of Enlightenment in Light of Current Debates in Social Criticism’ (2000) 7(1) Constellations 116, 123. 4 See ‘Dialect of Enlightenment’,
43
PhD is judged by an external examiner only by criteria that are appropriate to a socio- legal dissertation, or vice versa’.9
Some researchers may consider it absurd and hence reject the concept of assessing a legal provision against a benchmark that a provision does not profess to attain. Others may, however, describe external critique as a valuable tool for persuading readers to an alternative way of thinking that the external critic believes the reader should accept. For example, Myrdal in American Dilemma showed that the features in American modernity could be used as a basis for the Swedish jurisdiction seeking to critique and expose discrimination in relation to aspects of equality, justice, and liberty. External critique is not suited to this thesis because the aim is not to assess the general water pollution offences using some external criteria of evaluation. It will however, be gleaned from the following descriptions of immanent critique that internal and external critiques are similar in that they appeal to ‘some norm or standard that purports to give a reason to change a social arrangement or policy. It is not just empty talk or an attempt to coerce or manipulate the addressee of the criticism. It aims to change the way things are done by convincing people rationally by giving them good reasons’.10
The following explanations by Jabbari, Harden and Lewis, Hegel, and Pearson and Salter suggest that immanent critique provides a model for understanding the phenomena of ideals and outcomes specifically and the relationship between promise and performance generally. Jabbari explained that immanent critique is concerned with measuring ‘how far the dominant claims, values or assumptions of a theory are realized in the law’,11 to examine the ‘logical inter-relationships within a particular theory or area of law; that is to say, their internal ‘fit’ or consistency’.12 Harden and Lewis explained that contradictions require attention if the interrelationships between the various claims for consistency and internal fit establish some degree of dissonance,13 and Hegel believed
9 Above n.6. 10 Above n.7. 11 D. Jabbari ‘From Criticism to Construction in Modern Critical Legal Theory’ (1992) 12 Oxford Journal of Legal Studies 507, 516. 12 ibid, 517. 13 I. Harden and N. Lewis, Noble Lie: British Constitution and Rule of Law (Harper Collins 1986) 10.
44 that ‘the refutation must not come from outside, that is, it must not proceed from assumptions lying outside the system in question and inconsistent with it. The system need only refuse to recognise those assumptions; the defect is only a defect for him who starts from the requirements and demands based on those assumptions’.14 While Pearson and Salter recognise that the meaning and value of immanent critique can vary considerably within dialectical analyses sufficient to mean something different within Hegelian, Marxist or critical realist varieties of dialectical social theory, they define an initial phase of immanent critique as one which highlights some degree of shortfall between promise and practice through a series of logically interrelated stages.15
The above explanations indicate that immanent critique offers a conceptual basis for understanding and analysing relationships within social systems. It gives existing data new interpretations and meaning by assessing it from the notion of coherence and identifying issues and questions that are necessary for gaining a deeper understanding of given subject areas and where necessary, making positive changes too. The above explanations also suggest that immanent critique is comparable to a cross examination where the ideological perspective is assessed against its practice that then must admit to its own inadequacies. It is also comparable to an archival search where data that might otherwise be obscure (such as the rationale or history of any given legal provision) is exposed. More importantly, these explanations indicate that immanent critique is highly suited and most relevant to addressing this work’s aim of critically examining the relationship between the promise and performance of the law. The core aim of immanent critique is to assess the relationship between promise and performance and the core aim of this thesis is to assess judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ water discharges contrary to regulation 12 (1)(b) of the Environmental Permitting Regulations 2016.
2.2.2 Critical Theory and Immanent Critique
14 G.W.F. Hegel and A.V. Miller, Hegel’s Science of Logic (Humanities Press International 1969) 581. 15 Above n. 6 at 489.
45
There is no clear definition of critical theory. The precise shape of critical theory is thus elusive. It is expressed through a series of critiques of other thinkers and philosophical traditions where the highly diverse works of critical theorists in social theory, philosophical speculation and aesthetic critique have drawn on various thinkers including Hegel, Marx, Dilthey, Nietzsche and Weber. Critical theorists do not necessarily believe in establishing a set of fixed characteristics, avoiding the promulgation of blueprints of socio-political and epistemological beliefs.16
Critical theory lacks definitional precision although it has a definable core. It is a social theory directed towards critiquing and changing rather than merely understanding or explaining society. Its reconstructive element presumes ‘that only those principles or ideals which have already taken some form in the present social order can serve as a valid basis for social critique.’17 In sociology and political philosophy, for example, critical theory tries to foster social change by critiquing society, social structures, and systems of power. Early critical theory has been perceived as a radical social theory (or sociology), a sophisticated form of cultural criticism combining Freudian and Marxist ideas, and a utopian style of philosophical speculation deeply rooted in Jewish and German idealism. Critical theorists saw themselves as responding to the historical events of the day.
Held loosely divided critical theory into two branches; (i) the more recent work of Jurgen Habermas and (ii) the Institute of Social Research, University of Frankfurt, 1923. The Institute’s membership is often referred to as the Frankfurt School. Its key figures have included Max Horkheimer, Friedrich Pollock, Theodor Adorno, Erich Fromm, Herbert Marcuse, Franz Neumann and Leo Lowenthal. The main figures that the Frankfurt School sought to learn from and synthesize aspects of the work of included Kant, Hegel, Marx, Weber and Freud. Horkheimer, Adorno, Marcuse and Habermas.
16 Above n. 6 at 489. 17 See T. Stahl ‘What is Immanent Critique?’ Working Paper
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The Frankfurt school of thought, developed in 1930s Germany by the Institute for Social Research, was known for developing critical theory and promoting the dialectical method of learning by interrogating society’s contradictions. The Frankfurt school theorists, which later included Jurgen Habermas and Alfred Schmidt, drew on and developed the critical methods of Karl Marx to describe the neo-Marxist philosophy of the Frankfurt School of thought. Neo-Marxism, a relatively loose term, encompasses most of the trends of Marxist philosophy arising from the New Left. There is no unified ideology of Neo-Marxism in the way that there is in orthodox Marxism, but it tends to answer questions that traditional or orthodox Marxism cannot, especially considering technological advances and economic and political developments that Marx and Engels did not address or foresee.
‘Immanent critique’ is commonly associated with the work of critical theorists. The idea of theoretical diagnoses of contemporary society based on linking normative and empirical modes of analysis was invented by Hegel, developed by Marx, and refined by various members of the Frankfurt School. The seeds of immanent (internal) critique, however, lie at the very beginning of Western philosophy, in the Socratic methods and in Aristotle’s subsequent notion of dialectical argument.18 Hegel’s model of critique was one of immanence by investigating forms of knowledge using their presuppositions: ‘Consequently, we do not need to import criteria, or to make use of our own bright ideas and thoughts during the course of the inquiry; it is precisely when we leave these aside that we succeed in contemplating the matter in hand as it is in and for itself’.19 Marx explicitly developed the notion of critique using and linking the critique of ideology with the practice of social revolution. As a technical term for Marx, therefore, critique involved three distinguishable steps of analysis and evaluation: immanent criticism,
18 Above n.7. 19 G. Hegel, Phenomenology of Spirit Translated by A. V. Miller (OUP 1977) 54.
47 critical reconstruction, and critical supersession.20 Marx considered immanent criticism as the first step in critique, arguing that without it there can be no immediate access to reality, no direct route to truth.21.
Aspects of critical theory resemble American Legal Realism. The Realist movement, which dominated American legal theory during the first half of the 20th century and reached its peak during the 1920s and 1930s, is an intellectual movement that evolved in the United States and coalesced around a group of law professors and lawyers that Leiter identified as Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter Wheeler Cook, Underhill Moore, Hessel Yntema and Max Radin.22 Realism is a scientific examination of why judicial decisions are reached rather than an academic exercise about how decisions could be constructed as logical consequences of rules. Legal Realism, in claiming that when deciding cases judges primarily respond to the stimulus of the facts of the case rather than to legal rules and reasons, favours the empirical study of the law because its basic tenet is to examine the law in action (rather than legal rules per se) and the actual operations of legal systems in order to distinguish real rules from paper rules by asking how judges actually decide cases.
Legal Realism was popular among lawyers when advising clients. Realists were not so much interested in conceptual analysis of the law as they were interested in advising clients on what to do and giving realistic advice to better predict court decisions. Critical legal scholarship is a maturation of these Realist methodologies where critical scholars explore incoherence at the level of social or political theory and connect to a radical political agenda rather than a reformist policy programme.23 Indeed, advocates of American Legal Realism such as Jerome Frank and Oliver Wendell Holmes were sceptical about legal rules understood as abstract norms, insisting that an examination of court activities must involve insights into law in action. Frank, the most representative figure
20 P.G. Stillman, ‘Marx’s Enterprise of Critique’ in P.R. Pennock and J.W. Chapman (ed) Marxism (New York University Press 1983) 253. 21 ibid, 259. 22 See B. Leiter in D. Patterson, A Companion to Philosophy of Law and Legal Theory (Blackwell Publishing 2003) 261. 23 See D. Livingstone, ‘Round and Round the Bramble Bush: From Legal Realism to Critical Legal Studies’ (1982) 95 Harvard Law Review 1669, 1676.
48 of American Legal Realism in the early 20th Century, rejected the conventional view that the law is a complete body of unchangeable rules whereby ‘rule plus facts = decision’, instead supporting the realist view that ‘the stimuli affecting the judge plus the personality of the judge = decision’.24 Likewise, Holmes said that the law cannot be understood in terms of the orders of a sovereign power because the law is not a coherent complete system of rules and principles. It is nothing more than past decisions plus predictions of what future judges will do.25
To summarise, immanent critique offers a conceptual tool for analysing relationships within social systems by focusing on the key notions of promise and performance. The Frankfurt school of thought was known for developing critical theory and promoting the dialectical method of learning by interrogating society’s contradictions. Several methodologies are associated with the work of critical theorists. The main one is ‘immanent critique’, invented by Hegel, developed by Marx, and refined by certain members of the Frankfurt School.
The first stage in the application of immanent critique neutralises external criteria of evaluation. The idea is to undertake the process of immersion in order to understand the stance and intentions of the ministers that advocated the introduction of the entry of matter into waters. The second stage of immanent critique identifies the legislative goal(s) that the general water pollution offences claim to attain in order to legitimise their existence. The third stage of immanent critique investigates judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’, and the fourth stage compares stages two (ideals) and three (reality). If discrepancies are identified, the fifth stage of immanent critique will offer plausible justifications for, and possible ways of harmonising the incoherence. If discrepancies are not identified, the fifth stage will suggest possible ways of maintaining internal coherence. Chapter Three addresses stage two of immanent critique, Chapters Four and Five undertake stages three and four, and Chapters Six and Seven address the two elements of stage five of immanent critique.
24 ibid. 25 See above n. 23.
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Evidently, the theoretical framework of immanent critique defines the overall content and structure of the thesis, yet the immanent critic must exercise a sufficient degree of freedom in their work by defining various aspects in the application of immanent critique. This includes the method of data collation, how the practical aspect of law in action in assessed, and, if a mismatch between promise and performance is identified, the possible reform strategy and ways of harmonising incoherence and/or maintaining coherence. ‘Constructionism’ is a key component of immanent critique where meaning is constructed using the critic’s perception and interpretation of various pieces of information such as the likely reasons for a mismatch between promise and performance, judicial interpretations of the relevant offences, and the ministerial statements that supported the enactment of these offences.
2.3 The Five Stages of Immanent Critique
2.3.1 Stage One: external criteria for evaluation
The first stage of immanent critique identifies and sets aside those norms, values, claims and beliefs that do not relate or stem from the legal regulation in question. This is in keeping with immanent critique’s aim of assessing a legal provision or institution against their professed claims and standards. The idea of immersing in the details of the relevant legislative provision to gain an insightful understanding of its background and what is the purpose or point of the legal measure (its normative foundation and underpinning) is necessary for eradicating threats to internal validity (including that of researcher subjectivity). It also allows the immanent critic to defend his or her work to an audience to safeguard their credibility as a researcher, the research process, the findings, and immanent critique as a form of critical research.
Stage one of immanent critique rejects external criteria of evaluation by dismissing all statutes that either do not relate to water pollution prevention whatsoever or, although
50 aware of protecting waters from pollution, do not specifically deal with the prevention of water pollution. English water law comprises of many separate pieces of legislation but not all these statutes directly or specifically relate to the general water pollution prevention offences of ‘causing’ and ‘knowingly permits’ contrary to regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016. Two examples of statutes that do not relate to these general water pollution prevention offences are provided.
The first concerns the statutes that have been passed for the enforcement and administration of water law. This includes the Water Acts of 1945 and 1948, River Board Act 1948, Water Resources Act 1963, and the Water Act 1973. From the mid-20th Century it became clear that despite the introduction of the Rivers Prevention of Pollution Act 1876, the condition of many UK rivers were getting worse rather than better due to the weak and fragmented nature of local authorities who were responsible for the effective enforcement of water law.26 The 1948 Act was a direct response to the administrative shortcomings identified by the Third Report of the Central Advisory Water Committee which highlighted ‘a patchwork system of control, with several Authorities, possibly with differing ideas of the desirable standard of purity, dealing with the one river, or, what is worse, neglect arising from the fact that with so many responsible Authorities, each Authority may be inclined to leave the duty of enforcing the Acts to others’.27 Indeed, the stark contrast between the water pollution prevention statute of 1876 and the water enforcement legislation of 1948 is much clearer when comparing the purpose of the former which was to enact that rivers are kept free from pollution28 to the latter which was to establish a unified system of control over the rivers of England and Wales by reducing the number of administrative authorities dealing with water related matters.
26 ‘Against Pollution’ The Manchester Guardian, (12 December 1949) 4. See also, Baroness Young, HL Deb 07 May 1974, vol 351, cols 370-90, 387. 27 Central Advisory Water Committee, River Boards (cd.6465, 1943) Paragraph 57. See Viscount Simon in HL Deb 3 July 1961, Vol 232, cols 1177-94, 1178. 28 Mr Booth, HC Deb 8 June 1876, vol 229, cols 1599-601, 1599.
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The second example of water law statutes that do not directly or specifically relate to water pollution prevention relates to the protection of salmon fisheries. In 1860, commissioners appointed to inquire into salmon fisheries in England and Wales found ‘a marked decline in the productivity of salmon fisheries in many districts where rivers were polluted, especially where pollution was from mines, factories and gasworks’.29 River pollution proved disastrous for fish life. It continued into the 20th century where it was common to find ‘fish floating dead with their surface fins burned by acid or their eyes rotting out’ to be then ‘taken from the river and sold for human consumption’.30 The Tyne, for example, had been one of the richest salmon rivers in England where during the 19th Century 75,000 fish were taken out but it eventually became the foulest river after receiving 30 million gallons of entirely untreated sewage every day.31 Criminal legislation aimed at addressing the poisoning and/or the killing of fish life were consequently introduced such as the Salmon Fisheries Act 1861 along with related Acts such as the Salmon Freshwaters Fisheries Act 1923 (and the amendment Act 1929), and the Salmon and Freshwaters Fisheries Acts of 1935, 1965, 1972 and 1975.
In emphasising the requisite of differentiating internal and external standards, stage one of immanent critique raises the wider question of whether any form of critique can ever be wholly and exclusively internal, or whether these contrasting stances are simply extreme points along a broad spectrum or ‘continuum’? One suggestion is that no form of critique can ever be internal or external.32 Another suggestion is that the question of whether any piece of critique is purely internal or external will depend on a critic’s understanding of internal. For example, this thesis does not define the European water and environmental objectives such as those established within the WFD 2000 as internal to ‘causing’ and ‘knowingly permits’ because although the WFD reflects the spirit behind the water pollution offences contrary to regulation 12 (1)(b), this European provision was not present when these water pollution offences were introduced and developed (see
29 W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (Shaw and Sons 2001) 73. 30 Mr Mallalieu, HC Deb 16 July 1947, vol 440, cols 556-64, 559. 31 See ‘Factory Menace to Stream Life’ The Times (30 August 1926) 8, Issue 44363, col E; ‘River Pollution by Beet Factories, Problem of Waste Products’ The Times (26 October 1926) 13, Issue 4441, col D; ‘Cleaning the Rivers: New Laws Likely’ The Observer (3 August 1947) 5; and ‘River Pollution Wider Precautions Urge’ The Times (11 March 1949) 2, Issue 51327, col C. 32 Above n. 6 at 498.
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Chapter Three). The WFD echoes the 1876 sentiment of protecting water quality because it established standards necessary for the sustainable management of UK and other EU Member state waters by transforming water institutions and planning processes and preventing the further deterioration of waters by establishing a new and integrated approach for maintaining and improving the Union’s aquatic environment.33
2.3.2 Stage Two: legislative intention and benchmark
Immanent critics must establish the benchmark against which law in action is assessed.. They must identify the promise(s) made by the legislative provision that is the subject of the application of immanent critique. Chapter Three will argue that the key ‘promise’ made by the general water pollution offences of ‘causing’ and ‘knowingly permits’ is to prevent water pollution.
The benchmark which is utilised in this work is identified and analysed using parliamentary debates stemming from 1876 to the present day. Hansard will provide an insightful, authoritative and contemporary account of the original words and intentions that supported the enactment of the relevant water pollution offences. The limitations of using Hansard are, however, acknowledged. For example, legislative intention might appear ‘illusory’ if Parliamentary debates lack insightful contributions, and/or if the written text is deemed ambiguous or supports a contrary interpretation.34 The written nature of Parliamentary debates means that clarifications cannot be sought because ‘individual Members of Parliament cannot be put into the witness-box to supplement or interpret what has been formally enacted’.35 It is also difficult to assess what weight ought to be given to each ministerial submission found in the debates because, as Mr Justice Frankfurter said: ‘no item of evidence has a fixed or average weight. One or another may be decisive in one set of circumstances, while of little value elsewhere’.36
33 ibid. 34 W. N. Eskridge Jr and P. P. Frickey, ‘Statutory Interpretation as Practical Reasoning’ (1990) 42 Stanford Law Review 321, 357. 35 G. Williams, Learning the Law, (13th Edition, Sweet and Maxwell 2006) 122-123. 36 Mr Justice Frankfurther, ‘Some Reflections on the Reading of Statutes’ (1947) 47 Columbia Law Rev 527, 543.
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This work utilises the terms ‘legislative intention’ and ‘legislative purpose’ to mean the same. The efforts of Wright and Dickerson to differentiate the two notions is however, briefly highlighted. Dickerson argued that while the concept of legislative intention is in disfavour with many legal writers, that of ‘legislative purpose’ enjoys favour and prominence. For most, it is the touchstone of statutory interpretation, making it important to distinguish legislative purpose from intent. According to Dickerson, the two concepts ‘overlap in their widest sense’. Thus, when a legislature took particular action, it has a wide range of purposes which begins at the inner extreme with the specific purpose of taking that action and ending at the outer extreme with the very general purpose of helping to advance the public good. Thus, legal use of the word ‘intent’ coincides with the immediate purpose that the statute is intended to accomplish whereas the word ‘purpose’ refers to an ulterior purpose that the legislature intend that the statute will accomplish.37
While accepting that the distinction between legislative intent and purpose is by no means crystal clear, Wright suggested something like Dickerson. She described legislative intent to mean the narrow intent that an author has when writing a text – what message he or she hopes to communicate via the words chosen.38 This use of intention thus ‘makes use of what cognitive linguists have recognized as the conduit metaphor. In the conduit metaphor, words are the vehicles that transfer ideas between individuals. The speaker places ideas into the words, while the hearer extracts the ideas from the words received’. In short, a legislator’s intent is the idea that he or she sought to transfer using the words that he or she chose to speak. On the other hand, Wright takes legislative purpose to mean what a legislator imagines, or hopes will change about the world when enacting the legislation. The fact that the act of passing legislation changes something about the world means that legislative purpose is something more than what the Congress intends the direct effect or consequence of the legislation to be. Wright
37 R. Dickerson, Interpretation and Application of Statutes (Little Brown 1976) 87. 38 A. Wright, ‘For All Intents and Purposes: What Collective Intention Tells Us About Congress and Statutory Interpretation’ (2006) 154 University of Pennysylvania Law Review 983.
54 illustrates the difference between legislative intent and purpose by drawing attention to a provision which awards fees to attorneys in civil right cases. Legislative intent (what Congress sought to communicate) would be the direct result that attorneys be awarded fees if representing a prevailing party. By contrast, legislative purpose might be to increase the number of attorneys willing to take civil rights cases namely, the secondary effect that the statute seeks to bring out. Indeed, if Dickerson and Wright’s distinction between legislative purpose and intention is applied to this thesis, the latter could arguably be the message of water pollution prevention whereas the former would be the change in water quality.
The notion of legislative intention refers to the objective rather than the subjective intention of the legislature. This work accepts the point made relatively recently by Lord Nicholls in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd that ‘the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or individual members or even of a majority of individual members of either House’.39 According to Greenberg, the key reason given by Lord Nicholls in Spath for why subjective intention is not the aim of the courts’ search in construing legislation is that there are generally a large number of people whose subjective intention would have to be considered if subjective intention were relevant.40
2.3.3 Stage Three: The practical aspect of law
It is necessary to identify and assess specific examples of how the general water pollution offences of ‘causing’ and ‘knowingly permits’ have operated in actual practice once their
39 [2000] UKHL 61, [2001] 2 AC 349, 395. 40 See D. Greenberg, ‘The Nature of Legislative Intention and its Implications for Legislative Drafting’ (2006) 27 Statute Law Review 15.
55 legislative intention has been identified. Stage three of immanent critique undertakes a detailed analysis of relevant case law in order to understand how judges have interpreted the relevant pollution provision in relation to four elements of criminal responsibility namely, actus reus (commissions and omissions, and causation), mens rea (constructive knowledge), and the doctrines of both, strict and vicarious liability. This stage of immanent critique introduces the doctrinal black letter law methodology. It also introduces the doctrines of judicial precedent and statutory interpretation.
While on the subject of statutory interpretation, it is necessary at this juncture to explain the three main unitary theories of statutory interpretation put forward by Eskridge and Frickey, namely, actual or presumed intent of the legislature enacting the statute (‘intentionalism’), actual or presumed purpose of the statute (‘purposivism’ or ‘modified intentionalism’), and the literal commands of the statutory text (‘textualism’). An explanation of the different approaches to statutory interpretation should help understand why some judicial interpretations of the water discharge offences of ‘causing’ and ‘knowingly permits’ did not support an internally coherent interpretation of the law. It should also help make sense of Chapter Six and Seven’s critique of the literal and purposive approaches to statutory interpretation, and highlight the complexity, tension and competing backdrop against which judges undertake their task of statutory interpretation and why therefore, the notion of internal coherence is susceptible to either being given too much prominence or overlooked in its entirety. Indeed, the subject of statutory interpretation is governed by much literature meaning it is impossible in a work of this length to do justice to the literature.
Intentionalism asserts that the court act as the ‘enacting legislature’s faithful servant, discovering and applying the legislature’s original intent’. It makes a strong claim for being the only legitimate foundation for statutory interpretation in a representative democracy, namely, promoting democracy by expecting the courts to follow legislative intentions and affirm the will of elected representatives. Judge Posner’s idea of ‘imaginative reconstruction’ suggested that judges should imagine that they are talking
56 to the legislators at the time at which the legislation was enacted and to then reconstruct how the legislators would have used their values and concerns in order to answer the interpretive question.41 Eskridge and Fickey believe that Posner’s theory is more sensible than other versions of intentionalism although they recognise that not only does every statute carry certain assumptions about the nature of law and society but that often assumptions could prove ‘wrong, or simplistic, or obsolescent’ by resting on a questionable assumption that judges can create the historical understanding of a previous legislature when in fact historiography suggests that a present-day interpreter can never completely or accurately reconstruct past understandings.
The alternative to intentionalism - purposivism - has been described as the ‘traditional’ theory of statutory interpretation.42 Supporters of this approach such as Lord Scarman, Lord Nicholls, Lord Steyn, and Lord Denning, have emphasised the importance of legislative history in how judges interpret legislative intention, insisting that the courts should interpret parliamentary words in accordance with Parliament’s underlying intentions. It is not, as Lord Denning said, the role of the judge to ‘sit here to pull the language of Parliament to pieces and make nonsense of it . . . We sit here to find out the intention of Parliament and carry it out’.43
This theory put forward by Eskridge reflects the purposive approach to statutory interpretation. This interpretative approach is one of the surest and direct ways by which the courts can identify and apply legislative goals underpinning legislative provisions because it treats every statute as a purposive act. A statute without an intelligible purpose is alien to the idea of law: ‘if a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is non-sense’.44 Indeed, the European Union’s approach to the interpretation of legislation supports the purposive approach to statutory interpretation because it tries
41 R. A. Posner, The Problem of Jurisprudence (Harvard University Press 1990). 42 See J.R. Macey, ‘Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223, 250-51. 43 Magor and St. Mellons v Newport Corporation (1951) 2 All ER 839. 44 K. Llewellyn, ‘Remarks on the Theory of Appellate Division and the Rules or Canons about How Statutes are to be Construed’ (1950) 3 Vanderbilt Law Review 395, 400.
57 to ensure that legal provisions are interpreted in a manner that gives maximum effect to the aims of the EU.45 This was summed up in the early case of Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) where the European Court of Justice (ECJ) remarked that ‘to ascertain whether the provisions of an international treaty extend so far in their effective it is necessary to consider the spirit, the general scheme and the wording of those provisions’.46
The purposive approach to statutory interpretation is contrasted with the mischief approach because the latter focuses on the defect in the law and tries to interpret statutes in a manner that best remedies the problem using the intentions of the legislator. The mischief and purposive approaches are similar in that they seek to establish the legal meaning of words based on the meaning that parliament intended the words to have but the two approaches differ because the key question behind the mischief approach is - ‘what is the mischief and defect that the statute has sought to remedy?’ This requires the judge to look at other sources of information in relation to legislative wishes and interpret the Act in the light of the information gained. Indeed, the mischief approach offers a more satisfactory approach to statutory interpretation although societal changes have rendered this approach outdated, namely, its language is archaic and the mischief rule assumes that the statute is subsidiary or supplemental to the common law.47
Eskridge and Frickey’s third theory of textualism ‘appeals to the rule-of-law value that citizens ought to be able to read the statute books and know their rights and duties’. The emphasis should also be on legislative supremacy and judicial restraint by focusing on the statutory words that the legislature has chosen. Supporters of this theory are, therefore, likely to argue that the application of the purposive approach is ‘a naked
45 C. Manchester and D. Salter, Manchester and Salter on Exploring the Law: The Dynamics of Precedent and Statutory Interpretation (4th Edition, Sweet and Maxwell 2011) 100. 46 ECR 1. 47 The Law Commission and the Scottish Law Commission, The Interpretation of Statutes (Law Com. No. 21, 1969).
58 usurpation of the legislative function under the thin disguise of interpretation’.48 It is ‘not for judges to invent fancied ambiguities as an excuse for failing to give effect to the plain ordinary meaning because they consider the consequences to be inexpedient or even unjust or immoral’.49 Furthermore, ‘when language of a statute is plain, it is not open to the court to remedy defect in the draft’,50 and that ‘We do not inquire what the legislature meant; we ask only what the statute means’.51 This theory put forward by Eskridge reflects the literal approach to statutory interpretation.
The literal approach is unlikely to promote the notion of internal coherence because the emphasis is on the statutory words within the specific context of the case in order to establish what parliament meant. No reference is made to legislative intention because the literal approach believes that Parliamentary intention is found within four corners of a statute, not legislative history and other extrinsic aids.52 Departure from the ordinary meaning could be justified through the golden rule which has its origins in mid-19th Century judgments. For example, Parke B in Beck v Smith said: ‘It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used [and] unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further’.53 Lord Blackburn similarly said in River Wear Commissioners v Adamson: ‘I believe that it is not disputed what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification’.54
48 See Lord Simonds in Magor and St. Mellons Rural District Council v Newport Corporation [1951] 2 All ER 839. 49 Lord Diplock in Duport Steel v Sirs [1980] 1 WLR 142. 50 See Viscount Dilhorne in Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231. 51 O. W. Holmes, ‘The Theory of Legal Interpretation’ (1889) 12 Harvard Law Review 417, 419. 52 See Chapters Six and Seven for a critique of these interpretative approaches. 53 [1836] 2 M&W 191, 195. 54 [1877] 2 App Cas 743, 764.
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Overall, in the light of the contrasting submissions regarding the correct approach to statutory interpretation, it is evident that the judicial task of statutory interpretation carries much scope for interpretative inconsistency, uncertainty, and varying judicial responses to internal coherence.55 Chapter Five illustrates the judicial scope for interpretative inconsistency with reference to the case law surrounding the water pollution offence of ‘causing. More generally, Evan L.J. remarked in the Court of Appeal in R v Fellows and Arnold: ‘whilst the court’s decision in a particular case may indicate what can be described as a ‘purposive’ as distinct from a ‘literal’ approach, it would be wrong in our view to say one or the other of these two methods should be pre- determined or is correct’.56 There has been much interpretative inconsistency and uncertainty in relation to judicial interpretations of the general water pollution offences of ‘causing’ (and to a much lesser extent ‘knowingly permits’) although the current law on this area of the law is strongly in support of the purposive approach to statutory interpretation.
2.3.4 Stage Four: The Process of Comparison
The fourth stage of immanent critique compares the legislative ideals and the interpretative outcomes to ‘cause’ and ‘knowingly permits’ in order to assess the relationship between promise and performance. The way the fit is determined is not prescribed by immanent critique and the relationship between ‘fact’, ‘interpretation’ and ‘truth’ thus calls on the assessment and opinion of the immanent critic. Quite possibly therefore, there is always some potential for a difference of opinion where, at its extreme, ‘One man may see a twin star in the sky where another man will only see one. One man feels cold on entering a room, while another will say it is quite warm. On
55 D.A.S. Ward, ‘A Criticism of the Interpretation of Statutes in New Zealand Courts’ [1963] New Zealand Law Journal 293, 294. 56 [1977] 2 All ER 548, 554.
60 entering a house, one man, again, will alarm everybody by saying that a gas pipe is leaking; another visitor will smell no gas at all’.57
It will be recalled from Chapter One that this thesis assesses judicial interpretations of the said water pollution offences using four indicators of evaluation namely, whether the pollution offences were given a broad or narrow interpretation by judicial bodies, whether judges made express reference to the legislative goal of water pollution prevention, if judges communicated an awareness or vision for the legal environmental principle of environmental pollution prevention, and if the overall character of each judicial interpretation was on the whole in favour of the defendant water polluter or the goal of water pollution prevention.
2.3.5 Stage Five: the ‘ought’ and the ‘is’
If the fourth stage of immanent critique identifies discrepancy between the ‘ought’ and the ‘is’ of legal ideology, the fifth stage must address two systematic and analytical questions asking why the gaps arose and how they could be minimised or eliminated. If, however, there is coherence between the promise and performance of ‘causing’ and ‘knowingly permits’ the immanent critic could explore possible ways of maintaining it. Naturally, if judicial interpretations demonstrate both coherence and incoherence then it will be necessary to suggest reform with a view to remedying the incoherence and maintaining the coherence.
The fifth stage of immanent critique offers the researcher considerable scope for creativity although in doing so it also creates much opportunity for differences of opinion. Legal reform is an elastic and vague phrase in the sense that reform can be addressed in many possible ways. For example, some researchers may adopt a conservative view of law reform. As such, they may promote a strategy that supports the status quo and imagines reform as an ongoing incremental process that is based and built on existing ideas, namely, law reform activity that ‘inherently confines the extent of
57 M. Ossowska, Social Determinants of Moral Ideas (Routledge & Kegan Paul Ltd 1971) 121.
61 change and tends to reinforce the status quo’.58 Other researchers may be critical of minor re-adjustments that seek to preserve the status quo because it risks precluding ‘the possibility of developing new and perhaps more appropriate ways of responding to a legal problem than how the problem or issue was defined in the past’.59 They may consequently take a more liberal view of law reform and thus advocate new and radical ideas that may also potentially draw on the experiences and practices of other jurisdictions despite facing the risk of criticisms on the grounds of ‘excessive doctrinalism’, ‘shuttered attitudes to interdisciplinary inquiry’ involving ‘superficiality’ and ‘triviality’.60 Indeed, while immanent critique comprises of and advocates an agenda for reform, there is generally some degree of scepticism about the law’s ability to bring change. The celebrated Marxist legal theorist Pashunkanis, for example, was of this view,61 as was Fox who said that well-meaning efforts at reforming the law in order for it to be in keeping with values (such as privacy, justice and equality) are often misguided. The law exists to serve the status quo: the law ‘inhibits the systemic, radical social change necessary for psychological and societal well-being’ through for example, coercive power, substantive assumptions about human nature, a preoccupation with procedure rather than substance and a focus on technicality rather than equity.62
This stage of immanent critique offers the researcher considerable scope for creativity, especially because ‘environmental law has earned a well-deserved reputation for complexity’.63 The wide-ranging goals and aspirations ‘have spawned overlapping and often discordant legal doctrines’.64 Despite this, the fact that law reform within the context of immanent critique has a specific meaning should to some extent help curtail researcher discretion because the only idea that the critic should be concerned with is to trigger a dialectical process where a new level of demand or expectation cause the
58 M. J. Mossman, ‘Running Hard to Stand Still: The Paradox of Family Law Reform’ (1994) 17 Dalhousie Law Journal 5, 10. 59 ibid. 60 See N.H.D. Foster ‘Comparative Legal Studies: A Topic for the 21st Century’
62 system to move into a new higher gear by taking a theory or a way of life and pointing out internal contradictions. The aim of reform is to ‘move beyond criticism to construction’ by demonstrating the capacity of law to ‘effect and regulate significant social change … to show that programmes of social change may be engineered by developing the potential for such change that lies within existing legal rules and doctrines, and not by other non-legal means’.65
This section has explained how the theoretical framework of immanent critique provides the philosophical foundation on which this thesis rests and how the link between the theoretical and practical components of the relevant pollution provision are investigated. An explanation of the five stages of immanent critique also point to some of the strengths and limitations of immanent critique summarised below. The strengths also explain why immanent critique has been chosen for this thesis and how it offers the most insightful and logical framework for assessing coherence between the theory and practice of the general water pollution prevention offences to ‘cause’ and ‘knowingly permits’.
2.4 Immanent Critique as a Framework for Evaluation
One advantage of immanent critique concerns its flexibility and hence applicability to a diverse set of topics. This includes racial discrimination (Myrdal), interpretations of the immanent critique model (Pearson and Salter), the practice of zero tolerance in inclusive schools (James and Freeze), and as this thesis illustrates, water pollution prevention and water quality. The flexibility and applicability of immanent critique allows this theoretical framework to respond to accusations that it operates in a dogmatic manner and cannot be tailored to meet the specific demands of any research piece seeking to assess the fit between promise and performance. The flexibility offered by immanent critique also allows this theoretical framework to respond to the increasing demand to develop environmental scholarship by taking a critical and closer look at how environmental
65 Above n. 11 at 507.
63 provisions are operating and how legal environmental personnel such as judges, enforcement officials and environmental lawyers are meeting established standards.
A further advantage of immanent critique which is illustrated in this thesis is that this theoretical framework can expose double standards whereby theory suggests one thing and practice suggests otherwise. Chapter Five shows that the legislative goal of water pollution prevention has not always been realised during the interpretative process with the consequence that the message of protecting water quality was completely undermined, even in cases where judges claimed to apply the internally coherent authority of Alphacell. Indeed, immanent critique’s ability to identify double standards is not merely illustrated in this work. It is also illustrated by Myrdal in American Dilemma. America was committed to the ideals of justice and equality of opportunity for all, but Myrdal provided considerable evidence to expose a level of hypocrisy. Americans did not live up to the professed morals and as such, there was a clear difference in the treatment of black and white Americans.66 In applying a kind of immanent critique to the role of social scientists in America, Myrdal further identified a big discrepancy between the radical pragmatic, interdisciplinary, problem centred,, institutionalist, social engineering orientation of American intellectuals and their factual isolation and lack of support in social movements.
The significance of immanent critique as an instrument for exposing mismatch between promise and performance renders this theoretical framework particularly important for transparency and accountability reasons. Fuller argued that a man will answer more reasonably if he is compelled to articulate the principles on which he acts, that is, the kind of critique advocated by immanent critique can be enlightening if the addressee did not know that they were failing to meet their professed standard and will subsequently promise to do better. To Fuller, people occupying positions of power often betray their relationship with their subordinates mainly through the unwritten rules. He explains how most of the world’s injustices are inflicted ‘not with fists, but with the elbows’: ‘When we use our fist we use them for a definite purpose, and we are answerable to others and to
66 S. Pressman, ‘An American Dilemma: Fifty Years Later’ (1994) 28 (2) Journal of Economic Issues 577.
64 ourselves for that purpose. Our elbows, we may comfortably suppose, trace a random pattern for which we are not responsible, even though our neighbour may be painfully aware that he is being systematically pushed from his seat. A strong commitment to the principles of legality compels a ruler to answer to himself, not only for his fists, but for his elbows as well’.67
Another advantage of immanent critique that is further illustrated in this thesis is that research framework can be effective for bringing ‘emancipatory social change’. This can be achieved by showing that a legal system claiming to be well-ordered and competent is masked by internal inconsistencies: ‘the dynamic of growth moves from the realization of the possible ‘through’ the actual, such that the result is the unification of what is and what is yet to be’.68
In his effort to evaluate the success of contemporary critical legal theory in moving beyond criticism to the required conceptions of law, Jabbari argued that the reconstructive aim of modern critical theorists (capacity of law to effect and regulate significant social change) can be accomplished if the two intricate hurdles of ‘legal nihilism’ and ‘circularity’ are overcome. Jabbari defends the ability of critical legal theory to address the problems of legal nihilism and circularity. US Critical Legal Theorists tried framing a method of social change taking existing law seriously, asserting that the law is a vital tool of social change that can come from within the existing set of legal doctrines rather than a radically new conception of law. Unger, for example, suggested that the authority of the values underlying existing law can rise to a radically different understanding of law and society,69 and the leading European Critical Theorist of Law, Teubner, similarly argued that a new conception of law capable of changing society can evolve from a crisis in existing law. Indeed, Jabbari argues that attempts by critical legal theories to construct conceptions of law immune to the defects of criticisms of nihilism and circularity must be linked to a claim that law possesses ‘transformative potential’ –
67 L.L. Fuller, ‘The Morality of Law’ in H.L.A. Hart, Essays in Jurisprudence and Philosophy (OUP 1983) 64. 68 See J. E. Hansen, ‘The Dialectic of the Immanent and the Transcendent’ (1972) 32 (4) Philosophy and Phenomenological Research 543, 545. 69 See R. Unger, ‘The Critical Legal Studies Movement’ (1983) 96, Harvard Law Review 561, 577.
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‘the potential of existing legal rules and doctrines to yield a wholly new and different conception of law, and on that basis to give rise to a changed vision of society’.70 To achieve transformative potential, the problems of legal nihilism (by demonstrating that the law relates to society in a way that changes in the law can produce changes in society) and circularity (by requiring any reconstructed conception of law to be more than a replacement of one set of legal values for another) must be resolved.71 Indeed, Jabbari argues that any theory seeking to move beyond legal nihilism and circularity must involve a method of criticising existing law indicating the basis for a new conception of law. He identifies immanent critique as a way of exploring the flaws in existing law and legal theory, a strategy for reconstructing the law and establishing the transformative potential of law by providing ‘the basis for a new vision of law and legal theory by arguing from within existing law and legal theory . . . showing both the imperfect legal realization of the assumptions of a theory of law and by showing an inconsistency between assumptions within a theory or branch of law’.72
The benefits of immanent critique advocated in this thesis and highlighted in this Chapter (flexibility, ability to expose hypocrisy and potential to bring change) helps justify the use of this theoretical framework for the purpose of this thesis. These benefits further explain why immanent critique will yield the best results, insightful analysis, and conclusions in order to assess the relationship between the legislative goal of water pollution prevention and judicial interpretative outcomes with specific reference to the four key elements of the criminal law highlighted earlier. These strengths of immanent critique must, however, be read against its potential limitations.
One criticism of immanent critique is that it lacks credibility because it is implicitly cynical about the ability of the law to fully deliver on its promises. Immanent critics, in other words, simply responds to pre-existing thoughts and opinions about the subject matter under investigation. Stages one and two of immanent critique, arguably however, counter attack such accusations by requiring the immanent critic to dismiss all forms of
70 See above n. 11 at 510. 71 Above n. 11. 72 Above n. 11 at 518.
66 externality such as external values and objectives, the pertinent issues of bias, and any previously held presuppositions and assumptions about the legal ideology under investigation.
Immanent critique can also be accused of being tied to a certain perspective. In the event that there is a mismatch between promise and performance, it is the reality rather than the ideal of the subject matter under investigation that is most likely to make way for change. Put differently, if a mismatch between promise and performance has been identified, the immanent critic is likely to overlook the possibility that it is the benchmark that was the true cause of the mismatch by becoming obsolete and irrelevant after losing its significance over time. As Kauppinen says, immanent critique ‘appeals to standards and norms that are taken to be valid across time and place, regardless of what people actually think’. So, if the legislative ideal behind the water pollution offences to ‘cause’ and ‘knowingly permits’ water discharges - whose origins lie in the 1876 Act - were not in the best interests of all sections of society at this moment in time, such ideals can hardly provide a sufficient benchmark for assessing the environmental practices of the 21st Century. Suggestions as to immanent critique not being sufficiently critical of legislative norms is immaterial to this work because the legislative goal of water pollution prevention is anything but outdated, old-fashioned or irrelevant. This is particularly true in the light of the legal protection offered to water quality under European environmental laws.
Browne argued that the viability of immanent critique is currently in question because the logics of influential theoretical perspectives such as postmodernism, the risk society, and globalisation, is inconsistent with some of immanent critique’s presuppositions.73 This work, argues, however, that the viability of immanent critique is not currently in question for two key reasons. Firstly, the significance of immanent critique to environmental law is of much greater significance now than it has ever been. Despite the many positive environmental developments at domestic, European and international levels, the reality is that the relationship between established goals and the actual
73 C. Browne, ‘The End of Immanent Critique’ (2008) 11 (1) European Journal of Social Theory 5.
67 operation of legislative provisions must be tracked actively and critically. The theoretical framework offered by immanent critique is ideal for this task. As this thesis shows, immanent critique not only offers a thoughtful, reflective and tailored response to meet stated legislative goals but it robustly helps feed the demand to take environmental law, knowledge and literature into a higher gear.74 Secondly, it is further possible to doubt Browne’s submission in relation to immanent critique when noting the recent work of those such as Duff,75 Marks,76 Fried,77 and James and Freeze.78 For example, James and Freeze’s application of immanent critique using three distinct stages to discuss the contradiction of practising zero tolerance in inclusive schools confronted significant discrepancies arising in schools when the policies of inclusion and zero tolerance became practice. Stage one in their application of immanent critique explored the meaning of zero tolerance using its historical and philosophical foundations to reveal underlying beliefs and assumptions. Stage two focused on four points: (1) exclusion versus inclusion, (2) problem escalation versus problem solving, (3) inflexible versus flexible interventions, and (4) indifference to learning outcomes versus an emphasis on constructive learning to demonstrate contradictions in the implementation of zero tolerance policies in inclusive schools. The final stage in James and Freeze’s application of immanent critique, which tried reconciling the disparity between ideals and outcomes, offered some recommendations designed to provide inclusive alternatives for dealing effectively with students involved in serious behavioural incidents.79
A more compelling criticism to be levelled at immanent critique is that it rests on taken for granted questionable assumptions. One example, borrowed from stage two of this work concerns the necessity of establishing ‘legislative intention’. The notion of legislative intention is commonly met with the question of whether there is such a thing
74 See E. Fisher, B. Lange, E. Scotford and C. Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 (2) Journal of Environmental Law 213. 75 See R. A. Duff, ‘Theorising Criminal Law: a 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 353. 76 See S. Marks, ‘Big Brother is Bleeping Us – With the Message That Ideology Doesn’t Matter’ [2001] European Journal of International Law 109. 77 B. Fried, ‘Is As Ought: The Case of Contracts’ (2006) 92 Virginia Law Review 1374, 1375. 78 See S. James and R. Freeze, ‘One step forward, two steps back: immanent critique of the practice of zero tolerance in inclusive’ (2006) 10 (6) International Journal of Inclusive Education 581. 79 ibid.
68 as legislative intention in the first place. On the one hand, the notion of legislative intention is filled with doubt. Many judges have refused to recognise the concept. For example, Lord Watson in Salomon v Salomon & Co Ltd described the concept of ‘legislative intent’ as a ‘very slippery phase’.80 Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG) argued the inaccuracy of saying that ‘we are looking for the intention of Parliament’,81 and Staughton L.J. similarly declared in BP Oil Development Ltd v CIR that ‘in reaching these conclusions I have not attempted to achieve any purposive construction of the detailed provisions of the Act, since I am not sure what their purpose is’.82 These sentiments have also been shared by legal scholars. It has been said that legislative intent ‘is not easily realized, because people are not always successful in communicating their thoughts’,83 and that the pursuit of legislative intent is a wild goose chase because ‘it is like looking for a very black cat in a very dark room… only there is really no black cat there… but, every now and then, someone jumps up shouting, “I’ve found it, I’ve found it!”’.84 Fuller explained that so deep is their antipathy that the very phrase ‘legislative intent’ has become a legislative impropriety that some of them feel it necessary to avoid. Even those that utter the phrase legislative intent are careful to protect their professional respectability by pointing out that they use it to refer, instead, to some objective expression or the more acceptable concept of legislative purpose.
Perhaps ‘one of the most devastating analyses of legislative intent ever made’ was by Professor Radin.85 He argued that it is not realistic talking about legislative intention because there is no such thing as a ‘law maker’ or about the legislature because only one or two people drafted the bill, many voted against it, and those that voted for it may have had different ideas and intents in mind.86 This view has gained support from other commentators. Eskridge and Fickey have, for example, said that ‘the expectations and
80 [1987] AC 22. 81 [1975] All ER 810. 82 (1991) 64 TC 498, 532. 83 R. Dickerson, ‘Statutory Interpretation: A Peek into the Mind and Will of a Legislature’ (1975) 50 (2) Indiana Law Journal 206, 207. 84 I. McLeod, Legal Method (4th Edition, Macmillan Press 2002) 225. 85 M. Radin, ‘Statutory Interpretation’ (1930) 43 (6) Harvard Law Review 886. 86 ibid.
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intentions of a large collection of people, acting some time ago, are difficult to discover, and reliance of these expectations is neither as reasonable nor as likely as reliance upon a statute’s text’.87 Dworkin similarly concluded that no group (including the legislature) is able to form intentions because intentions are mental states that exist only in the minds of individual persons: ‘We must take as primary the mental states of particular people because intentions do not have minds, and then we must worry about how to consolidate individual intentions into collective, fictitious group intentions’.88 Again and more recently, Jarchow, after serving in the Wisconsin legislature, argued that there is no such thing as ‘legislative intent’ and that the idea of looking to legislative history for guiding statutory interpretation is ‘severely flawed’. For a bill to become law in Wisconsin, for example, majorities in the 99-member Assembly and the 33-member Senate must pass the bill and the governor must then sign the bill. A minimum 68 different people must vote in favour of and sign the bill but the notion that they will all share the same intent ‘is ridiculous’ because of those 68 ‘some will have little knowledge of what the bill does, some will flat-out oppose it but vote in favor because it’s popular back home, some will vote for it due to pressure from some special interest group, some will simply not care and won’t want to rock the boat, and some, of course, will share a common objective’.89
The argument that immanent critique rests on the taken for granted questionable assumptions about legislative intention is diluted by those judges that have alluded to the existence of this notion. Viscount Dilhorne in Stock v Frank Jones (Tipton) Ltd for example, pointed to the existence of ‘legislative intention’ when he stated that ‘the aim of the act is to find the intention of parliament as expressed in the words it used’,90 Justice Learned Hand in Cabell v Markham claimed that statutes always have a purpose end ‘whose sympathetic and imaginative discovery is the surest guide to their
87 W.N. Eskridge and P.P. Frickey, ‘Statutory Interpretation as Practical Reasoning’ (1990) Stanford Law Review 325, 356. 88 R. Dworkin, Law’s Empire (Hart Publishing Oxford 1998) 336. 89 A. Jarchow, ‘Why Judges Should Forget about Finding Legislative Intent’
70 meaning’,91 and Lord Reid in IRC v Hinchey said ‘what we must look for is the intention of Parliament’.92 More recently, Lords Griffiths and Browne Wilkinson in Pepper v Hart respectively referred to the existence of ‘legislative intent’ when they said that ‘the object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature’ and that it is for the ‘courts to give effect to the intention of Parliament in using those words’.93
The argument in support of the notion of legislative intention has also gained support from academics. Dickerson explained that despite the criticisms and scepticism surrounding the notion of legislative intention, the typical judges or lawyers continues to refer to legislative intent.94 Landis said something similar in that ‘to deny the existence of a legislative intention is to deny the existence of legislative function,95 as did Fletcher who described statutes as a purposive instrument that seeks to serve some end and describe particular offences as governmental efforts to protect identifiable interests such as homicide to protect life, rape to protect sexual integrity, and treason to protect the government.96 Similarly, Eskridge explains that Hart and Sack’s intellectual starting point was the usefulness of law as the doing of something, a purposive activity, a continuous striving to solve the basic problems of social living.97
Despite the differences of opinion, the existence of ‘legislative intention’ is not in doubt as far as this thesis is concerned. Chapter Three illustrates that the Parliamentary debates in Hansard have consistently and clearly stipulated the reason for why the water pollution offences of ‘causing’ and ‘knowingly permits’ were introduced and why these offences have continued to the present day. It is possible to further support the existence of ‘legislative intent’ using the following two arguments. The first is that in reflecting on some of the key pieces of environmental legislation highlighted in Chapter One it is
91 Justice Learned Hand in Cabell v Markham [1945] 148 F 2d 737, 739 (1945). 92 [1960] AC 748, 767. 93 [1993] AC 593. 94 Above n. 37 at 68. 95 See J. Landis, ‘A note on Statutory Interpretation’ (1930) 43 Harvard Law Review 886, 887. 96 See G. Fletcher, Rethinking Criminal Law (Little Brown and Company 1978) 30. 97 See W. N. Eskridge, ‘Interpretation of Statute’ in A Companion to Philosophy of Law and Legal Theory, edited by D. Patterson (Blackwell Publishing 2003) 202.
71 evident that these statutes have been introduced with a purpose in mind. For example, the purpose of the Clean Air Act 1956 was to introduce smokeless zones in response to the London smog, the Deposit of the Poisonous Waste Act 1972 aimed to control waste management because of hazardous waste dumping, and the Environment Act 1995 set up agencies to regulate businesses and required national waste and air quality strategies. The second argument in support of the existence of ‘legislative intent’ appeals to the question raised by Asp - has not the criminal law always been conceptually linked to prevention? Although he accepts that the idea of prevention is not the primary rationale in all parts of the legal system, Asp asserts that mainstream criminal law theory has on the whole often emphasised that the main purpose of having a criminal law system ‘is to achieve some preventive effects (i.e., to reduce harmful behaviour)’ and that ‘general prevention certainly has a role to play’.98
Clearly, the framework set out by immanent critique helps deliver the aims and objectives set out in Chapter One of this thesis. It offers the following three inter- connected processes of monitoring (providing critical information on what has and is happening as far as the scope and interpretation of ‘causing’ and ‘knowingly permits’ is concerned), reviewing (analysing data/judgments from case law to draw attention to good practice and shortcomings to determine whether legislative promises have been realised by judges) and performing (using the information and evidence that have materialised from the first and second processes to introduce measures necessary to promote water quality through water pollution prevention). Indeed, this work applies immanent critique to the specific context of water pollution prevention but there is no reason why the framework put forward by immanent critique cannot apply to the broader environmental context in order to serve as a mechanism for promoting internally coherent environmental laws.
2.5 Chapter Summary
98 P. Asp, ‘Preventionism and Criminalization of Nonconsummate Offences’ in A. Ashworth, L. Zedner and P. Tomlin (ed) Prevention and the Limits of the Criminal Law (OUP 2013) 27.
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This thesis defends the theoretical framework of immanent critique for delivering the aims and objectives of this thesis, and for its ability to produce critical original legal knowledge that is capable of promoting change and progress by bringing together doctrinal, reform-orientated and theoretical perspectives.99 The doctrinal perspective systematically highlights the legal principles that govern the chosen legislative measure, the reform perspective evaluates the adequacy of existing rules and practices with a view to instigating positive change, and the theoretical perspective helps foster a more comprehensive understanding of the conceptual basis and legal principles that govern specific areas of the law. This thesis agrees with Sabia that the potential for ‘immanent critique is always present, and the penchant for it, and the presence of it, should never be overlooked or dismissed’. This thesis also defends doctrinal research because although it lacks analytical sophistication, it plays a crucial role in discharging stages two and three of this thesis. Together, immanent critique and doctrinal legal research form the necessary instruments by which this thesis can evaluate judicial interpretations of the general water pollution offences under regulation 12 (1)(b) of the Environmental Permitting Regulations 2016. Chapter Three turns to stages one and two of immanent critique.
99 See T. Hutchinson and N. Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 (1) Deakin Law Review 83.
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CHAPTER THREE: ESTABLISHING INTERNAL CRITERIA
3.1 Introduction
Chapter Two set aside external norms, values, claims and beliefs that do not belong to the general water pollution offences of ‘causing’ and ‘knowingly permits’. This Chapter undertakes stage two of immanent critique to identify the legislative goal(s) that underpin the offences that this thesis is concerned with. Chapter Two therefore, identifies the benchmark against which judicial interpretations of the general water pollution offences will be measured during stage four in the application of immanent critique.
Section 3.2 identifies and explains the statutes that have enabled the relevant water pollution offences to continue to the present day. This legislative history of the water pollution prevention statutes will help locate the parliamentary debates that support the general water pollution offences of ‘causing’ and ‘knowingly permits’ to establish two things: (i) the legislative benchmark, and (ii) whether the legislative goal that was established in 1876 has continued to survive to the present day. Section 3.3 investigates and presents the legislative goal as the criterion/criteria of evaluation, and Section 3.4 highlights the rationale that led to the passing of the general water pollution offences. This Chapter, therefore, essentially answers two questions. What is the legislative goal behind the water pollution offences of ‘causing’ and ‘knowingly permits? Why were these pollution offences introduced? This Chapter, therefore, assesses these offences in a way that existing scholarly literature has not. It explores the context behind their introduction and continuation, the legislative debates and ministerial submissions from 1876 to the present day which explained the necessity of these general water pollution offences, and it places the notion of legislative intention against the backdrop of immanent critique. For these reasons, this Chapter adds to the originality of this thesis.
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3.2 Legislative History of ‘Causing’ and ‘Knowingly Permits’ Contrary to Regulation 12 (1) (b) of the Environmental Permitting (England and Wales) Regulations 2016
Several attempts have been made by the legislature since the late 19th Century to examine the subject of water pollution prevention. Royal Commissions established in 1865 and 1868 urged the necessity of legislation subsequent to their enquiry into the pollution of rivers and the means of preventing river pollution. Three Commissioners appointed in 1865 enquired on the following three matters - the extent to which the rivers in England and Wales carrying off the sewage of towns and the refuse arising from industrial processes could be reduced without any risk to public health or serious injury to industry, how far such sewage and refuse could be utilised or rendered harmless before reaching rivers, and the effect of mills, weirs, locks and other navigation works on the drainage of lands and towns, particularly to the obstruction to the natural flow of rivers.1 Three new Commissioners were appointed in April 1868 to proceed at the point where the previous commission had been abandoned. Approximately four Bills presented to Parliament before the 1876 Act were drafted based on the recommendations of the Royal Commissions, but these Bills did not materialise as law due to the anticipated difficulties in the administration of absolute standards for effluents as well as the opposition of manufacturers having been ‘so difficult to deal’ with.2 That said, the opposition from industry did not triumph all the time. The Rivers Prevention of Pollution Act was introduced in 1876. It marked the beginning of the water pollution offences to ‘cause’ and ‘knowingly permits’ the entry of matter into waters. These offences have survived to the present day through several statutes such as the Rivers (Prevention of Pollution) Acts 1951, Rivers (Prevention of Pollution) Acts 1961, Control of Pollution Act 1974, Water Resources Act 1991, and now the Environmental Permitting Regulations 2016. The subject of water pollution prevention has come before
1 See, for example, the Commissioner’s first report on the Thames valley, dated 29 March 1866 ([3634, 3634-1] HC (1866) xxxiii, 1, 71).
75 the legislature on many occasions which perhaps explains why the legal protection of waters has been described as ‘an essay in gradualness’.3
3.2.1 Rivers Pollution Prevention Act 1876
The Rivers Pollution Prevention Act 1876 was one of the most prominent and at the same time simplest acts on the statute books. It was designed to prohibit water pollution in three parts - pollution by solid matter, sewage pollution, and pollution from manufacturing and mining. Part I made it an offence to ‘put or cause to be put or to fall or knowingly permit to be put or to be carried into any stream’ any matter that ‘either singly or in combination with other similar acts of the same or any other person, interfered with its due flow, or polluted its waters’. Under Part II, it was an offence to cause or fall or flow or to be carried into any stream any solid or liquid sewage matter. Interestingly, Part III contained a provision that shared a similar wording to the most recent iteration in regulation 12 (1)(b) of the Permitting Regulations: ‘to cause to fall or flow or knowingly permitted to fall or flow, or to be carried into any stream any poisonous, noxious, or polluting liquid proceeding from any factory or manufacturing process’.
Despite the passing of the 1876 Act and despite its simplicity, the entry of matter into waters was still ever present. Two important Hampshire Rivers were, for example, still found to be less pure than they had ever been ‘within living memory’.4 The Fishery Board Report for the River Lune in 1945 observed that from Liverpool and Barrow (and 150 miles around) there was a minimum discharge of 260,000 gallons of crude sewage every mile every 24 hours – ‘the cesspool that thousands of people bathe in’.5 Parliamentary debates highlight two obstacles for the ineffectiveness of the 1876 Act.
3 Mr Blackburn, HC Deb 24 March 1961, vol 637, cols 827-95, 836. 4 Lord Strabolgi, HL Deb 4 June 1945, vol 136, cols 305-36, 306. 5 Mr Mallalieu, HC Deb 16 July 1947, vol 440, cols 556-64, 559.
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Firstly, the Act offered a significant advantage to industry. Local authorities had to first be satisfied that legal proceedings would not materially injure the industry,6 and that action taken under the Act was based on ‘sanitary’ and ‘public health’ grounds.7 Industry and commerce produced ‘a great deal of employment’ and ‘considerable economic success in the welfare of the country’. It also, however, produced a great deal of pollution.8 Local authorities, therefore, feared that the implementation of the law would offend local manufacturers to the extent that they would take ‘the rates and employment they provided away from the district’.9 The ultimate consequence of this obstacle was to make water pollution prosecutions, as Mr Turton said, relatively unlikely, occurring in only about ‘50 per cent of the cases’.10 The second explanation for the ineffectiveness of the 1876 Act is that the laws were not put into operation because there were ‘a great many different authorities’ [1605] empowered to deal with river pollution’.11 The authorities responsible for enforcing the 1876 Act and whose responsibility it was to ensure the purity of rivers were themselves some of the main river polluters.12 As Mr Greenwood explained in the House of Commons: ‘I confess to sharing the misgivings of the hon. Member for Burton as to whether the river boards are the ideal bodies for carrying out this Measure. . . . it is quite possible that a river board will be reluctant to prosecute local authorities which may themselves be represented on the board’.13
The failing of the 1876 Act is not surprising. The Bill received considerable criticism during its progress through Parliament. Mr Goschen, for example, believed that such an ‘imperfect’, ‘paltry’ and ‘hesitating’ Bill ‘could not claim to have done all that was necessary for the prevention of the pollution of rivers’. Mr Playfair saw little advantage
6 Part III of the Act fundamentally raised the question of ‘What is it to be – trade or trout?’ See Mr Harold Davies, HC Deb 16 July 1947, vol 440, cols 556-64, 557. 7 HL Deb 12 June 1951, vol 172, cols 20-32. 8 Major Hicks Beach, HC Deb 24 March 1961, vol 637, cols 827-95, 893. 9 Mr Greenwood, HC Deb 27 November 1950, vol 481, cols 801-906, 822. 10 HC Deb 27 November 1950, vol 481, cols 801-906, 846. 11 Viscount Simon, HL Deb 3 July 1961, vol 232, cols 1177-94. 12 Mr. John Rodgers, HL Deb 27 November 1973, vol 347, cols 11-108. 13 Mr Greenwood, HC Deb 27 November 1950, vol 481, cols 801-906, 822.
77 in passing a Bill that was vastly in the interests of the polluters. Yet despite its failings, the 1876 Act was arguably a tremendous step forward for pronouncing the importance of protecting waters from polluting matter because it illustrated the state’s awareness and willingness to address the subject of water pollution prevention by defining such behaviour as unacceptable and establishing boundaries for industry to operate within. The 1876 Act also supported the idea that with economic success comes social responsibility and it marked an important starting point in changing the way the law understood and portrayed the subject of water pollution. It was another 80 years before parliament decided to legislate again about water pollution prevention, no doubt because the magnitude of the difficulty of disposing of surplus water and other materials by industry was far greater in 1951 than in 1876.
3.2.2 Rivers (Prevention of Pollution) Act 1951
The 1951 Act was supported by several reports during the parliamentary debates, such as the Milne Report of 1943 and the Hobday Report (‘the bible on the matter’).14 The Rivers (Prevention of Pollution) Act 1951 was a genuine attempt to keep the rivers and the banks of the rivers clean, to make ‘further provision for maintaining or restoring the wholesomeness of the rivers and other inland or coastal waters of England and Wales’.15 The legislative provision for maintaining or restoring the purity of the rivers changed its emphasis and priority from action being taken on sanitary and public health grounds to the effective treatment of waters. Lord Macdonald explained, while under the 1876 Act any action taken had to be on ‘sanitary’ and ‘public health’ grounds, it was now advisable in this 1951 Bill to ‘omit any such reference’.16 Here marks the significant moment at which the legislative rationale for the water pollution provision had started to move away from the public health focus.
14 Viscount Swinton, HL Deb 12 June 1951, vol 172, cols 20-32, 22. The Hobday report was described by Lord Haden-Guest as a ‘very fine piece of work and well worth reading’. Lord Haden-Guest HL Deb 12 June 1951, vol 172, cols 20-32, 30. 15 Long title of the Act 16 HL Deb 12 June 1951, vol 172, cols 20-32, 23.
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Section 2 (1) of the 1951 Act made it an offence to ‘cause’ or ‘knowingly permit’ any poisonous, noxious or polluting matter to enter a stream following a Central Advisory Committee’s (established under Mr Hobday) recommendation that the 1876 Act should be replaced by a comprehensive code rendering it illegal to allow offensive matter, solid or fluid to enter a stream. This legislative provision widened the scope of the earlier provision to include various kinds of pollution and eliminate previous distinctions between sewage pollution and industrial pollution, as well as solid and liquid pollution. The remit of the offence was also extended beyond discharges into streams. The Act now included any river, watercourse or inland water, whether natural or artificial.
The 1951 Act went further than the 1876 Act also because it shifted its priority to the effective treatment of waters. It also created the first system of discharge consents where the discharge of new trade or sewage effluent into streams had to be licensed and required permission from the relevant river board.17 Anyone wishing to make such a discharge had to apply for consent, give the particulars of the discharge, and then await the decision of the river board before they could do anything at all. Although the 1951 Act worked ‘extremely well’ in many ways, and while it was supported by river boards who were given full powers to deal with wilful offenders that ‘failed to incur reasonable expenditure on works of purification or to make proper use of works that are available’,18 this Act did not work so well in relation to existing discharges.19
3.2.3 Rivers (Prevention of Pollution) Act 1961
The Rivers (Prevention of Pollution Act) 1961 was an extension of the 1951 Act. It too aimed to provide an ‘expert and practical way of controlling, improving and finally
17 Mr Temple, HC Deb 24 March 1961, vol 637, cols 827-95, 828. 18 Lord Macdonald, HL Deb 12 June 1951, vol 172, cols 20-32, 24. 19 Viscount Simon, HL Deb 3 July 1961, vol 232, cols 1177-94, 1177.
79 removing the sources of river pollution’,20 and ‘maintaining or restoring the wholesomeness of the rivers and other inland or coastal waters of England and Wales’. The 1961 Act recognised, however, that although there had been statutes making river pollution a criminal offence, there remained a widespread appreciation that ‘further steps should be taken in [the sphere of] pollution prevention control’ because the provisions of the 1951 Act - which would have controlled the pre-1951 discharges - would have proved unworkable over time.21
In 1956, the Trade Effluents Sub-Committee of the Central Advisory Water Committee studied the subject of river pollution under the chairmanship of Sir Frederick Armer. The principal recommendations of their Report were accepted by the Central Advisory Water Committee. The 1961 Bill endeavoured to give effect to these recommendations. The 1961 Act sought to deal with regular discharges of trade and sewage effluent after the Armer Committee recommended that all trade and sewage effluents should be adequately treated (as far as it is possible to do so) and that dischargers should have protection against prosecution under certain Acts of Parliament when complying with those conditions.22 The 1961 Bill introduced some important changes that related to the taking of effluent samples, removing the requirement of ministerial consent before bringing a prosecution, and eliminating the defence under the 1951 Act that it was not practicable to dispose of the effluent in any other way. Although the Rivers (Prevention of Pollution) Act 1961 provided a fresh attempt to address a problem for which Parliament began to legislate in 1876, it still lacked effective procedure for which there was increasing public concern. The 1961 Act tried to introduce some positive change for the protection of waters from water discharges, but it proved ‘disappointing’ because it failed to assist local authorities who were in a very precarious financial position with limited resources with which to finance proper sewage disposal.23
20 Sir Joseph, HC Deb 24 March 1961, vol 637, cols 827-95, 884. 21 Sir Joseph, HC Deb 24 March 1961, vol 637, cols 827-95, 827. 22 Sir Joseph, HC Deb 24 March 1961, vol 637, cols 827-95, 829. 23 See Mr Woolf, HC Deb 24 March 1961, vol 637, cols 827-95, 849.
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3.2.4 Control of Pollution Act 1974
The 1951 and 1961 Acts were repealed by the Control of Pollution Act 1974. The 1974 Bill was formerly known as the ‘Prevention of Pollution Bill’ but was renamed to the ‘Control of Pollution Bill’. ‘Prevention of Pollution’ was thought to promise too much in terms of its aspirations because in reality the prospective legislation merely sought to deal ‘with only one aspect of the protection of the environment [and] it would be a pity if we got it into our heads that by producing a Bill with this name we were doing all that was necessary or were covering as many fields as we ought to cover by legislation’.24
The 1974 Act consolidated earlier environmental protection legislations because the legislative framework had previously lacked ‘cohesion and co-ordination between all the bits of legislation’ that dealt with the protection of the environment from pollution.25 The Act made further provision with respect to four aspects of environmental protection that had for some years been of particular interest to Parliament, namely, waste disposal, water pollution, noise, atmospheric pollution, and public health. Although the 1974 Act was designed to consolidate environmental protection legislation, the Act went further than previous legislation because it made considerable improvements in relation to effluents. A power under Clause 29 allowed for ‘the publication of applications to discharge and for disclosure of samples’.26 The Act also replaced the term ‘stream’ with ‘controlled waters’. This extended the scope of the legislative provision to include virtually all waters whether inland, tidal or coastal. Section 30 (1) of the 1974 Act now, therefore, stated that ‘a person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters’.
24 Lord Henley, HL Deb 27 November 1973, vol 347, cols 11-108, 30. 25 Lord Ashby, HL Deb 27 November 1973, vol 347, cols 11-108, 35. 26 Baroness White, HL Deb 27 November 1973, vol 347, cols 11-108, 23.
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The significance of COPA 1974, in comparison to the earlier water pollution statutes, was that it reflected the emerging messages at domestic, European and international levels that environmental wrongdoing could no longer be readily ‘shrugged off’ as an acceptable morally neutral white-collar crime or a by-product of an industrial world. The Act not only marked the beginning of environmental wrongdoings being given greater legal, social, political and moral recognition but it now also made it possible that judicial interpretations of key pollution offences such as ‘causing’ and ‘knowingly permits’ water pollution would be interpreted in a manner that would be compatible with the goal of environmental protection and prevention. The significance of COPA 1974 was to also arguably highlight the emerging relationship between the criminal law and environmental law, that is, the potentially productive capacity of the criminal law to serve in the environmental field as ‘an authoritative, institutional discourse which seeks to organise our moral and political understanding . . . on how to think about good and evil, normal and pathological, legitimate and illegitimate, and order and disorder’.27
3.2.5 Water Resources Act 1991
From the late 19th to the 20th Century parliament had expressed much interest and concern towards the subject of water quality and water pollution prevention. Their overall response had, however, been reactive and incremental. It is thus not surprising that a consolidation programme took place in 1991 following recommendations from the Law Commission in their Report on the Consolidation of the Legislation Relating to Water.28 The water pollution offences of ‘causing’ and ‘knowingly permits’ were placed under Section 85 (1) of the Water Resources Act 1991. It continued to use the wording in section 30 (1) of the 1974 Act, that is, ‘a person contravenes this section if ‘he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters’.29
27 N. Lacey, C. Wells, O. Quick, Reconstructing Criminal Law, Text and Materials (3rd Edition, CUP 2006) 10. 28 See Law Commission, Water Resources: Consolidation Report (No 198, 1991). 29 Section 88 provided a defence to the principal offences through authorised discharges.
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The Water Resources Act 1991 was introduced in December 1991 (along with the Water Industry Act 1991; Land Drainage Act 1991; Statutory Water Act 1991; and the Water Act 1991) in order to consolidate existing water legislations relating to water resources, flood defence, and water quality and pollution.30 The emphasis was on the consolidation of existing laws rather than to change the underlying purpose of water pollution prevention first established in 1876 through the water pollution prevention offences of ‘causing’ and ‘knowingly permits’ the entry of matter into controlled waters.31 This is arguably surmised from the words of John Fraser who congratulated those responsible for the prospective Bill on the basis that the consolidation of existing water pollution prevention legislations would make life easier for those dealing with the legislation. The consolidation aspirations of the 1991 measure were also made clear by Sir Nicholas Lyell during the second reading of the Water Resources Bill. He explained how the five Bills formed part of the one consolidation and that in preparing the consolidation, the Law Commission issued a report in which it made a number of recommendations for minor technical amendments to improve the consolidation: ‘The Joint Committee reported that the recommendations of the Law Commission were necessary to produce a satisfactory consolidation of the law, and that the five Bills, taken together, amounted to a single consolidation’. It will be recalled from Chapter One that the water pollution offences of ‘causing’ and ‘knowingly permits’ are now under regulation 12 (1)(b) of the Environmental Permitting (England and Wales) Regulations 2016. The Environmental Permitting Regulations of 2010 replaced the original 2007 environmental framework and the 2016 Regulations amended that of 2010.
3.2.6 The Environmental Permitting Regulations 2007, 2010, 2016
The 2007 Regulations introduced a single stream-lined environmental permitting and compliance regime by integrating the existing regimes for Waste Management Licensing (WML) and Pollution Prevention Control (PPC) in order ‘to reduce the administrative
30 Existing legislation had been spread over 20 separate pieces of legislation including the Water Act 1945, The Water Resources Act 1963, and the Water Act 1989. 31 HC Deb 23 July 1991, vol 195, cols 1107.
83 burden of regulation on industry and regulators without compromising the environmental and human health standards previously delivered by these separate regimes’.32 This meant that the 2007 Permitting Regulations did not include water discharge and groundwater activities.
The aim of consolidation continued with the Environmental Permitting Regulations of 2010 (replacing the original environmental framework) and 2016 (amending the 2010 Regulations).33 The draft Environmental Permitting Regulations 2010, for example, extended the 2007 Regulations. It widened the streamlined permitting compliance system in England and Wales to now integrate the permitting regimes covering water discharge consenting, groundwater authorisations and substance regulation authorisations.34 The Permitting Regulations 2016 contained few substantive changes and was largely an administrative exercise.
This section suggests that the state has historically been very reluctant to engage with the subject of water pollution prevention. The background to the 1876 Act was controversial involving much public agitation and numerous entries of matter into controlled waters before laws were introduced. The 1876 Act highlighted some potentially complex issues for water pollution prevention but through the passage of time, state enthusiasm has helped establish, albeit gradually, a stronger legal framework for water pollution prevention and the protection of water quality. The domestic legal framework for the protection of waters is now arguably a powerful determinant of behaviour and is a particularly important influence on businesses and industry who must observe a particular set of state defined rules, norms, and goals when pursuing their financial interests. Now that this section has identified the statutes that have codified the offences of ‘causing’ and ‘knowingly permits’, the necessary starting point from
32 HL Deb 20 November 2007, Vol 696, Cols GC28. 33 Rachael Maskell, HC Deb 14 November 2016, Col. 1, 4. 34 See Paragraph 2.1 of the Explanatory Memorandum to Environmental Permitting (England and Wales) Regulations, 2010, No. 675.
84 which to establish the benchmark against which judicial interpretations of these water pollution offences can be assessed during Chapters Four and Five has been established.
3.3 The Benchmark of Evaluation
The legislative intention behind the water pollution offences to ‘cause’ and ‘knowingly permits’ is in the Parliamentary debates in Hansard. This source of information is important because immanent critique suggests that legislative ideals must be identified using texts in which legislative ideals are found. Hansard embodies the legislative ideals by virtue of a Bill, a formal document that identifies and explains the essence and objectives of prospective legislation.
3.3.1 The Goal of Preventing Water Pollution
The notion of water pollution prevention featured in the Royal Commission reports of 1866, 1868, 1870 and 1871 when various issues such as the process of treating sewage and pollution from the woollen manufacturers and processes formed part of the Royal Commission’s fundamental aim of inquiring into the best means of preventing the pollution of rivers. The legislative goal of water pollution prevention was first established in 1876 during the parliamentary debates of the 1876 Act. It was later reiterated in 1961, 1974 and the Permitting Regulations 2016.
The parliamentary debates from 1876 to the present day confirm that the water pollution offences to ‘cause’ and ‘knowingly permits’ are supported and underpinned by one fixed key goal - preventing water pollution. In 1876, Mr Sclather-Booth repeatedly explained that the 1876 Bill sought to ‘prohibit the casting of noxious refuse, whether manufacturing or mining, into rivers’, to ‘make further provision for the better prevention of the Pollution of Rivers’, and ‘to enact generally that rivers were to be kept
85 free from pollution.35 Mr Playfair also similarly stated that the prospective water pollution legislation ‘tried to deal in a simple way with certain kinds of pollution’,36 as did The Duke of Buccleuch who urged the absolute necessity of doing something to ‘prevent the wholesale pollution of the rivers [and that] every person who should cause or permit to fall or flow, or put or permit to be carried into any clean river, or any clean part of a river, any polluting matter, should be deemed to have committed an offence against the Act’.37 Mr M’lagan described the 1876 Act as a ‘Bill to make further provision for the better prevention of the Pollution of Rivers’.38
The goal of water pollution prevention was reiterated in 1961. Mr Blackburn, for example, explained that the relevant legislation was ‘one of a series of Bills dealing with pollution and the prevention of pollution, starting with the Bill of 1876’.39 Commander Harry Pursey similarly said ‘we all wish to further the prevention of the pollution of our rivers’,40 and Sir Keith Joseph explained that the ‘Bill provides an expert and practical way of controlling, improving and finally removing the sources of river pollution’.41 The Control of Pollution Bill continued the aim of water pollution prevention, notably explained by Lord Bishop who with specific reference to the problem of water pollution, said that the ‘Bill deals only with the negative side, the prevention of pollution’.42 Lord Henley agreed with Lord Ashby, that the powers contained with the prospective legislation strengthen the law in relation to water pollution prevention.43
The legislative goal of water pollution prevention first established in 1876 continues to exist under the 2016 Regulations. The same is also indicated in ministerial declarations that have broadly explained the importance of ensuring that the 2016 Permitting
35 HC Deb 8 June 1876, vol 229, cols 1599-601, 1599. 36 HC Deb 1 August 1876, vol 231, cols 281-5. 37 HL Deb 25 July 1876, vol 230, cols 1881-2. 38 HL Deb 25 July 1876, vol 230, cols 1881-2. 39 HC Deb 24 March 1961, vol 637, cols 827-95, 836. 40 HC Deb 24 March 1961, vol 637, cols 827-95, 856. 41 HC Deb 24 March 1961, vol 637, cols 827-95, 836. 42 HC Deb 27 November 1950, vol 481, cols 801-906, 822. 43 HC Deb 27 November 1950, vol 481, cols 801-906, 822.
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Regulations continue the desire for strong environmental protection. Rachel Maskell, for example, explained that the Permitting Regulation 2016 ‘will not see the watering down of any environmental protections’,44 and Lord Gardiner said that while the consolidation and updating of the legislation will make the rules more accessible and transparent, ‘the principles of environmental permitting, and in particular the strong protection of the environment remain’.45 Lord Rooker added that while the documents for the Environmental Permitting Regulations have been reduced from 500 to just over 120 pages, ‘they still deliver the environmental protection that we care about’.46
The general aim of preventing environmental harm was highlighted in the Environmental Permitting Regulations which this work interprets as supporting the goal of water pollution prevention, albeit in a less direct manner. For example, in relation to the 2016 Permitting Regulation it was said that the provision will not ‘dampen or reduce any environmental protection’,47 will continue protecting ‘the environment and human health’,48 and that the ‘ambition of the regulations is to require operators of industrial and waste activities to protect the environment and human health’ which is achieved with ‘a tight regulatory framework that requires operators to obtain a permit to manage their operations’.49 In searching for the legislative goal of water pollution prevention it has become apparent, particularly from the parliamentary debates of 1876, 1951, 1961 and 1974, that the goal of water pollution prevention is underpinned by the concept of water quality rather than water quality standards.
In 1876, Mr Sclater-Booth said that the relevant Bill sought to do ‘more to improve the purity of the domestic supply of water than any other measure that could be proposed’,50 and that the opposition to the Bill ‘should not stand in the way of the purity of rivers [and
44 HC Deb 14 November 2016, Col. 1, 4. 45 HC 22 November 2016, Vol 776, cols 1845. 46 HL 20 November 2007, vol 696, cols GC28. 47 HC Deb 14 November 2016, Col. 1, 4. 48 HC Deb 14 November 2016, Col. 1, 4. 49 HC Deb 14 November 2016, Col. 1, 4. 50 HC Deb 24 July 1876, vol 230, cols 1876.
87 that] The purity of their water must be an object of great anxiety to every hon. Member of that House’.51 In 1950, Mr Hutchinson said that ‘this Bill is really to ensure that those rivers which are at present clean will be kept clean’,52 and Lieut.-Colonel Elliot stated that careful and thoughtful consideration should be given to the Bill who purpose is ‘that our streams should be pure.’53 Mr Bevan added that the matter is one which can ‘can only make progress if we exercise restraint but, nevertheless, restraint with a definite goal ahead, namely, that eventually our rivers and streams shall be cleansed, and shall be sources not of infection and of abhorrence’.54
The significance of securing improved water quality was again noted in 1951. Lord Haden Guest said that the Bill ‘will provide the opportunity for our rivers – though, not of course, at once – to attain the highest standard of cleanliness possible’,55 sufficient ‘to improve the condition of our rivers and to prevent pollution’.56 Ministerial statements ‘in favour of having purer rivers’57 that ‘shall be as pure as possible’ were similarly reiterated in 1961.58 Mr Temple explained the necessity of ‘cleaner water in our rivers and streams’,59 Mr Robert Woolf said that ‘at the heart of the matter lies the question whether the Bill in its present form will be effective enough to lead to the maintenance of the standards of purity we desire’,60 and Lord Balfour added that ‘the Government feel increasingly that the country is fully seized of the importance of mastering this problem of the pollution of our rivers. We all wish to get, and with time we shall get, all our rivers clean enough to swim in, clean enough to fish in, and clean enough to take pleasure in’.61 The Parliamentary debates for the Control of Pollution Act 1974 wanted to make ‘a valuable contribution to making and keeping cleaner our rivers and coastal waters, and especially the estuaries’, ‘cleaner effluents, cleaner rivers’, and ‘accelerate the programme of giving
51 HC Deb 4 August 1876, vol 231, cols 556-61, 557-558. 52 HC Deb 27 November 1950, vol 481, cols 801-906, 874. 53 HC Deb 27 November 1950, vol 481, cols 801-906. 54 HC Deb 27 November 1950, vol 481, cols 801-906, 822. 55 HL Deb 12 June 1951, vol 172, cols 20-32, 32. 56 Mr Nugent, HC Deb 31 May 1951, vol 488, cols 457-500, 457. 57 HC Deb 24 March 1961, vol 637, cols 827-95, 864. 58 Mr Ede, HC Deb 24 March 1961, vol 637, cols 827-95, 866. 59 HC Deb 24 March 1961, vol 637, cols 827-95. 60 HC Deb 24 March 1961, vol 637, cols 827-95, 846. 61 HL Deb 3 July 1961, vol 232, cols 1177-94, 1193.
88 us cleaner rivers’.62 In 2016, as part of the tidying up exercise for reducing the work for the applicant for a permit, it was made clear that the law will not see the ‘watering down of any environmental protections’.63
In searching for the legislative goal, it has become further apparent that the notion of prevention is central to the offences of ‘causing’ and ‘knowingly permits’. The case law discussions in Chapters Four and Five show that the notion of prevention is particularly important for water quality. When the notion of prevention is compromised, it is likely that a multitude of substances could find its way into controlled waters such as chemical, oils, and even edible substances such as milk which pose no risk to human health but could prove harmful to the water environment) and cause catastrophic and irreversible environmental damage.64 For example, in Shell UK (1990) the escape of 30,000 gallons of heavy black crude oil into the River Mersey resulted in a ten-mile oil slick killing between 200 and 300 birds and oiling a further 2,000;65 the Exxon Valdez spillage saw how the release of up to 38 million gallons of crude oil affected many animals, and the Deepwater Horizon oil incident resulted in 210 million gallons of crude oil entering the ocean and destroying corals, fish, dolphin and birds.
The concept of prevention so heavily promoted during the parliamentary debates for the introduction and continued existence of the general water pollution offences of ‘causing’ and ‘knowingly permits’ has also secured an important position in the water pollution and environmental law frameworks of the European Union. For example, Article 191(2) of the Lisbon Treaty states that the Union’s environmental policy shall be based on the precautionary and preventive principles. The First and Third Environmental Action Programmes (EAP) included prevention as one of its 11 key environmental principles and had as its strategy the idea that prevention is better than cure.66 The concept of
62 HL Deb 27 November 1973, vol 347, cols 11-108, 43. 63 HC Deb 14 November 2016, Col. 1, 4. 64 See Chapters Four and Five. 65 Reported in Water Law (1990) 40. 66 Third Environmental Action Programme, Official Journal of the European Communities, Volume 26, 17 February 1983, C 46/ 5.
89 prevention has continued through to the latest seventh EAP and is reflected in measures such as the WFD.
The concept of prevention which heavily underpins the general water pollution offences to ‘cause’ and ‘knowingly permits’ water discharges is also in keeping with mainstream criminal law theory. This often emphasises that the main purpose of having a criminal law system is to achieve some preventive effect namely, harmful behaviour. The common dimension of the criminal law, Schauer argues, involves a form of prevention justice which albeit controversial and at the extreme ‘is concerned not with the crimes the defendant has already committed, but rather with the crimes the defendant might commit in the future’.67 The utilitarian position usually also begins with the presumption that the purpose of criminal justice is to reduce crime. This purpose is achieved by taking coercive action against those individuals that have broken the law and can be held responsible for it. The concept of prevention as found within mainstream criminal theory is also broadly reflected in the views of the American legal scholar Herbert Packer. He first proposed two models (‘crime control’ and ‘due process’) to explain the competing values that inform the laws and institutions of the criminal justice system.68 The value system model that underlies the ‘Crime Control Model’ contains an undertone to prevention by the fact that it is based on the proposition that the ‘repression of criminal conduct is by far the most important function to be performed by the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order’.69
To summarise, the thoroughly articulate, detailed and unequivocal Parliamentary debates in Hansard show that the water pollution offences of ‘causing’ and ‘knowingly permit’ have been designed to prevent water pollution to promote water quality. The goal of water pollution prevention has remained constant and has continued to exist
67 F. Schauer, ‘The Ubiquity of Prevention’ in A. Ashworth, L. Zedner and P. Tomlin Prevention and the Limits of the Criminal Law (OUP 2013) 12. 68 H.L. Packer, ‘Two Models of the Criminal Process’ (1964) 113 University of Pennsylvania Law Review 1. 69 ibid.
90 through the statutes outlined in Section 3.2 of this thesis. The cynicism mentioned in Chapter Two about whether there is such a thing as ‘legislative intent’ is not relevant to this thesis because as far as the water pollution offences of ‘causing’ and ‘knowingly permits’ are concerned, it makes ‘perfectly good sense to speak of legislative intent’ even though the legislature has comprised of many people from 1876 onwards.70 Having answered the first question in this Chapter about the legislative goal that underpins the pollution offences relevant to this thesis, it is necessary to explain the motivations that influenced the introduction of these offences.
3.4 Legislative Rationale
The goal of water pollution prevention to promote water quality has been consistent and constant. The rationale that underpinned the goal of water pollution prevention has, however, evolved from 1876 to the present day. The early stages in the legal history of water pollution prevention was motivated by the impact of water pollution on public health caused by industrial activity. Later efforts to promote the goal of water pollution prevention was motivated by the desire to protect water.
The initial goal of water pollution prevention to promote water quality was motivated by the need to protect the nation’s health. Parliamentary debates have not clearly defined what Ministers meant by ‘health’ although Lord Balfour indicated that ‘health’ carries a multi-dimensional meaning that goes beyond physical health to include social and mental well-being. He explained: ‘the Government feel increasingly that the country is fully seized of the importance of mastering this problem of the pollution of our rivers . . . I think that is important, not only for the wealth of many people but also for the health, for the sport and for the pleasure of very many more’.71 Indeed, protecting the nation’s health was stated many times during the Parliamentary debates that supported the
70 See L.M. Solan, ‘Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation’ (2005) 93 The Georgetown Law Journal 427. 71 HL Deb 03 July 1961, vol 232, cols 1177-94, 1193.
91 offences of ‘causing’ and ‘knowingly permits’ water pollution prevention. In 1876, Mr Whitwell, for example, suggested that the Rivers Prevention of Pollution Bill 1876 was ‘most essential to the health of the country’,72 and Mr Cross urged the passing of the Bill on health grounds: ‘and if there were nothing else in the measure but the means of preventing that great cause of injury to the public health . . . it would be well worth the House’s while to pass it’.73 In 1950, Mr Colegate pursued the idea of protecting the public’s health, to ‘get out of the heads of the public the idea that river pollution is just a question of sewage and that it is a question which concerns only a few anglers who want a little fun on their streams. Pollution is of vital importance to public health’.74 Lord Balfour similarly said in 1961 that ‘the Government feel increasingly that the country is fully seized of the importance of mastering this problem of the pollution of our rivers [and] I think that is important, not only for the wealth of many people but also for the health’.75
Clearly, the water pollution offences of ‘causing’ and ‘knowingly permits’ were heavily tied to an anthropocentric perspective. Safeguarding the health of the nation - and protecting various public pleasures - were noted in ministerial statements that urged the introduction of the 1876 Act. Mr Colegate, for example, rhetorically asked, ‘Pollution is of vital importance to public health . . . What is the good of having shorter hours and holidays with pay, as we all agree we should have, if the country, with all its natural beauty, is not available for people so that they may have in it the recreation for which they are given the holidays’.76 Mr Morrison similarly said: ‘I intervene with a little diffidence in this debate on a complex problem. I do so for three reasons. The first is that I, like most people, enjoy a swim, and I find that in non-industrial parts of south-west England it is becoming increasingly difficult for local swimming clubs to get clear and pure water. Secondly, I am one of the two million anglers who, without any skill at the task, enjoy a day’s fishing. Thirdly, I am connected with the British Field Sports Society, which
72 HC Deb 24 July 1876, vol 230, col 1876. 73 HC Deb 04 August 1876, vol 231, col 556-61, 559. 74 HC Deb 27 November 1950, vol 481, cols 801-906, 818. 75 HL Deb 03 July 1961, vol 232, cols 1177-94, 1193. 76 HC Deb 27 November 1950, vol 481, cols 801-906, 819.
92 has done a great deal of research work and inquiry into the difficult problems we are discussing today’.77
As far as the offences of ‘causing’ and ‘knowingly permits’ are concerned, there has been since the mid-20th Century a clear move from the anthropocentric perspective. This is evidenced by the legislature’s specific reference to the necessity of protecting waters from the impact of water discharges on the environment. In 1951, for example, Colonel Clarke argued that ‘It would be wrong to allow this ochre water [from water pumped from mines] to destroy all life in the rivers’.78 In 1973, Lord Windlesham made a forceful case for the protection of waters when stating that ‘we have begun to realise that nature, in the widest sense of the word, is man’s most precious inheritance; that the physical world around us and the ecological systems that enclose us are not, as was once almost taken for granted, indestructible’.79 He continued: ‘the House as a whole has become more conscious, I believe, of environmental considerations as an additional perspective against which a whole range of legislative proposals needs to be judged’.80 In 1974, Lord Craigton similarly explained that the pollution provision is about conservation, reflecting on the European achievements that have been made since 1957 (when Article 2 of the Treaty of Rome made no mention of environmental protection) to respect the environment for its own intrinsic value and for the sake of itself and all of its non-human related aspects.81 A much more recent reminder of the move away from an anthropocentric view was in the words of Lord Gardiner when speaking of the 2016 Environmental Permitting Regulation: ‘the regulations will continue to ensure that the environment and human health are protected from harmful activities’.82
Protecting water quality became a matter of priority from the mid-19th Century when huge changes in agriculture, manufacturing, mining, and transport profoundly affected
77 HC Deb 27 November 1950, vol 481, cols 801-906, 833. 78 HC Deb 31 May 1951, vol 488, cols 457-500, 486. 79 HL Deb 27 November 1973, vol 347, cols 11-108, 15. 80 HL Deb 27 November 1973, vol 347, cols 11-108, 15. 81 HL Deb 07 May 1974, vol 351, cols 398-444, 416. 82 HC Deb 22 November 2016, vol 776, cols 1845.
93 the UK’s socio-economic and cultural conditions. It produced many ills on the community including the poisoning of streams and rivers from waste manufacturing processes in dye works, mills, tanneries, breweries, malt houses and slaughterhouses it.83 The Irwell, Manchester, for example, was ‘almost proverbial for the foulness of its waters’ after receiving almost every kind of entry from industry including waste from cotton factories, coal mines, and works from print, bleach, dye, chemical and paper.84 The same was said of the River Kibble where ‘the public had been obliged to keep all the windows of the house closed in order to keep out the unwholesome stench of the river Kibble’,85 as well as the rivers of the North of England which ‘were polluted to an enormous extent by solid matter put into them and by sewage’86 choking up with the solid refuse thrown into them causing injury to the people living on the banks.87
Ministers have repeatedly explained that it was the economic development and industrial activities of the country that led to the entry of matter into waters and later the introduction of water pollution prevention legislation. The impact of industrial activity on water quality was acknowledged by many ministers. Mr Cross explained that the Act was a great step to stop the further pollution of rivers by manufacturers,88 Mr Playfair asserted that the prospective legislation ‘tried to deal in a simple way with certain kinds of pollution’ and that it ‘treated pollutions caused by manufactories and mines’.89 Sir Henry James argued that the ‘streams were poisoned by the refuse of the manufacturing ingredients discharged into them’.90 In 1923, Lieutenant-Commander Kenworthy commented that ‘Industrialism in this country has worked many ills on the community, but one of the worst things that has happened has been the fouling of our beautiful English rivers and streams’. Later, in 1950, Lieutenant Colonel Elliot explained
83 Sir Henry James. HC Deb 4 August 1876, vol 231, cols 556-61, 557-558. ‘Pollution of Yorkshire Rivers’ The Preston Guardian (Preston, 24 August 1867) Issue 2929. 84 See C. Bracegirdle and E. Wallace, The Dark River (Sherratt 1973) 19. See also, S. Coyle and K. Morrow, The Philosophical Foundations of Environmental Law (Hart Publishing 2004) 108-109. 85 HC Deb 4 August 1876, vol 231, cols 556-61, 561. 86 HC Deb 4 August 1876, vol 231, cols 556-61, 561. 87 HC Deb 4 August 1876 vol 231, cols 556-61, 559. See, HC Deb 27 November 1950, vol 489, cols 801-906, 822. 88 HC Deb 4 August 1876 vol 231 cols 556-61, 559. 89 HC Deb 1 August 1876, vol 231, cols 281-5. 90 HC Deb 8 June 1876, vol 229, cols 1599-601, 1599.
94 that the original necessity for the Rivers Pollution Prevention Bill came from innovations during the Industrial Revolution and the significant increase in manufacturing and mining activities along the banks of rivers.91 This was echoed in the words of both, the Minister of Health, Mr Aneurin Bevan: ‘The root causes of the pollution of our rivers and our streams are well known. They arise largely as a consequence of the industrial revolution [and] are polluted by effluents from sewage and also by waste from industries.’92 as well as Mr de Freitas in 1952: ‘We had little pollution of the rivers up to the beginning of the last century, but, as soon as factories were built, and factories started putting their effluent into the rivers, the rivers began to be polluted’.93
To summarise, the early stages in the legislative history of water pollution prevention focused on the impact of water pollution on public health caused by industrial activity. Later efforts increasingly recognised the necessity to protect the water environment and water in its own right. These factors provided the legislature with the difficult task of balancing various interests – the interest of the general population to have pure streams and rivers, the interests of the environment from being harmed, and the interests of the industrialists to establish their industry. The situation was not easy to deal with. Mr Arthur Colgate explained the risk that industry would take the employment that they offered the community elsewhere, that is, the entry of effluent into waters could not suddenly be stopped without putting thousands of people out of employment. In any event, industries did not have the facilities to treat their effluent at short notice.94
Having explained the legislative history of the water pollution offences to ‘cause’ and ‘knowingly permits’ and answered the questions of what the legislative goal behind these offences is and why these water pollution offences were introduced, it is necessary to address the third stage in the application of immanent critique.
91 HC Deb 27 November 1950, vol 481, cols 801-906, 808-809. 92 HC Deb 27 November 1950, vol 481, cols 801-906, 808-809. 93 HC Deb 21 July 1952, vol 504, cols 235-44, 235. 94 HC Deb 27 November 1950, vol 481, cols 801-906, 817.
95
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CHAPTER FOUR: ALPHACELL v WOODWARD (1972): ‘KNOWINGLY PERMITS’ AND ‘CAUSING’ WATER DISCHARGES.
4.1 Introduction
Chapter Three said that the water pollution prevention offences of ‘cause’ and ‘knowingly permits’ contrary to Regulation 12 (1)(b) of the Permitting Regulations is underpinned by the key goal of water pollution prevention. Chapters Four and Five will undertake the third and fourth stages of immanent critique to identify how the said water pollution offences have operated in actual practice (judicial interpretations of these offences) and how these offences have then compared against their legislative benchmark (water pollution prevention) using the indicators outlined in Chapter One.1
The case law in this Chapter has fallen within one of the four key areas of the criminal law namely, actus reus (commission and omission, and causation), mens rea (constructive knowledge), strict liability and vicarious liability. The following four indicators of evaluation will be used to determine whether the relevant case law could be classed as internally coherent. This includes asking whether the pollution offences were accorded a broad or narrow interpretation, judges made express reference to the legislative goal of water pollution prevention, judges made reference to or spoke about a vision for the protection of the water environment by reference to the general environmental principle of prevention, and whether the overall character of the case was in favour of the defendant water polluter or the goal of water pollution prevention. Indeed, existing scholarly literature relating to these water pollution offences have not commonly involved a criteria or criterion of evaluation. Chapter Four and Five’s analyses of the general water pollution offences of ‘causing’ and ‘knowingly permits’ is, therefore, different to existing literature because they have in mind the legislative purpose for which the water pollution offences were introduced. This informs the originality of this Chapter specifically and this thesis generally.
1 The indicators are: (i) express judicial reference to legislative intention (ii) broad or narrow interpretation of the offences of ‘causing’ and ‘knowingly permits’ (iii) a general judicial awareness of the environmental principle of environmental pollution prevention (iv) and an overall assessment of the character of the case in either leaning in favour of the defendant or the protection of waters.
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Chapters Four and Five fundamentally ask the same question of whether judges have produced internally coherent interpretations of the water pollution offences of ‘causing’ and ‘knowingly permits’, to be distinguished from the question of whether judges were merely concerned with the meaning of and liability for the offence to ‘cause’. Soriano explained this difference; legal justification involves two distinct kinds of reason - authority (includes legal norms, precedents, legal doctrine) and substantive (values, principles, rights and policies).2 The question is, to what extent should the court consider both authority and substantive reasons when interpreting environmental laws. To address the aim of this Chapter, this Chapter touches on several legal issues such as judicial discretion, the value and limits of the criminal law, the role of the state in protecting the environment, and the nature and essence of the doctrines of strict liability, vicarious liability, statutory interpretation, and judicial precedent.
Section 4.2 first describes the facts of the landmark case of Alphacell v Woodward and then discusses judicial interpretations of the offence of ‘knowingly permits’ through the lens of internal coherence.3 Section 4.3 of this Chapter discusses Alphacell’s interpretation of the offence of ‘causing’ and its relationship to internal coherence using the issues of commission and omission (passive/active distinction), causation (in fact), strict liability, and vicarious liability. Section 4.4 offers some concluding remarks. Chapter Five continues the discussion on the offence to ‘cause’ water pollution by evaluating the way in which the courts have interpreted and applied the offence subsequent to Alphacell. Table 4.1 lists the key cases that are discussed in Chapters Four and Five.
Table 4.1 Case law
2 L. M. Soriano, ‘Environmental ‘Wrongs’ and Environmental Rights: Challenging the Legal Reasoning of English Judges’ (2001) 13 Journal of Environmental Law 297. 3 [1972] AC 824.
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‘Knowingly Permits’ Alphacell v Woodward [1972] Schulmans Incorporated Ltd v National River’s Authority [1993]
Causing: Passive/Active Distinction Alphacell v Woodward [1972] Price v Cromack [1975] Wychavon District Council v National Rivers Authority [1993] Attorney General’s Reference [No. 1 of 1994]
Causing: Causation: Third Party Intervention Impress (Worcester) v Rees [1971] National River’s Authority v Wright Engineering Co. Ltd [1994] CPC (UK) Limited v National Rivers Authority [1995] National Rivers Authority v Yorkshire Water Services Ltd [1995] Southern Water Authority v Pegrum and Pegrum [1989]
Causing: Vicarious Liability National Rivers Authority v Alfred McAlpine Homes East Limited [1994]
Causing: Clarifying the Law National River’s Authority v Empress Car Company (Abertillery Ltd [1998]
Causing: Post-Empress Environment Agency v Brock [1998] Express Dairies v Environment Agency [2005]
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4.2 ‘Knowingly Permits’
The offences to ‘cause’ and ‘knowingly permits’ contrary to regulation 12 (1)(b) were first established in 1876. It is was only after the 1972 House of Lord’s case of Alphacell that the first actual interpretation to ‘cause’ and obiter dicta observations about ‘knowingly permit’ were judicially provided.4 Without established precedent, judges had to make a number of important decisions about the meaning and scope of the offence of ‘causing’ such as whether the offence was one of strict liability, the legal distinction between to ‘cause’ and ‘knowingly permits’, and the circumstances in which it could be said that a third party intervention had broken the causal link. There were interpretative issues that the courts also had to consider such as whether the water pollution offences should be accorded a broad or narrow interpretation and whether the judges should deploy a literal, mischief and/or purposive approach to statutory interpretation.
It is common to the criminal law to separate the key elements of a crime into two main elements: (1) actus reus (the prohibited act, omission, consequence or state-of-affairs); and (2) the mens rea (any fault element, such as intent or recklessness, required in respect of it). In relation to the actus reus, most criminal offences require the defendant to carry out some positive act before liability can arise. There can be no liability for omissions unless the law specifically imposes such a duty upon a particular person. Although most crimes are committed by positive action, ‘knowingly permitting’ water pollution is contrary to the general rule because an omission to act may constitute the requisite act. Omission as Weinryb explains, is nothing but a special kind of action, drawing on Bentham’s suggestion that omissions are essentially ‘negative actions’ that do not ‘involve bodily movements yet still amounts to action because when a person omits to do something they nevertheless perform ‘an inner act of will’.5
4 Impress (Worcester) Ltd v Rees [1971] 2 All ER 357 precedes Alphacell but Impress is discussed in Chapter Five because it sits better within the structure of Chapter Five rather than Four. 5 E. Weinryb, ‘Omissions and Responsibility’ (1980) 30 (118) The Philosophical Quarterly 1.
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The law of ‘knowingly permits’ is governed by a limited body of case law because most prosecutions have been under the offence of ‘causing’. It nevertheless remains important to assess judicial interpretations of this offence against the notion of internal coherence to gain a comprehensive understanding of the relationship between interpretative outcomes and the goal of water pollution prevention.
4.2.1 Alphacell v Woodward [1972] – ‘Knowingly Permits’
Alphacell, paper manufacturers, produced two types of effluent - boiling liquors and wash waters.6 The wash water was channelled into two settling tanks situated on the riverbank. Once the waters reached the settling tanks, it was recirculated and re-used for manufacturing paper. The tanks consisted of two pumps, the first operated automatically (after the water in the lower tank reached a certain level) and the second manually. Both pumps sought to prevent water from entering the nearby river after expelling water from the settling tanks and into the filtration plant. The first pump was intended to prevent an overflow into the river and the second acted as a standby.
On Tuesday 25th November 1969, an inspection by a foreman of the tanks found that the tanks were working well at 8.15 am but that at 11.30 am the water in the tanks had increased. He switched on the second pump. Visits by the foreman at 1.15 pm and 3.45 pm did not show any changes in the water level but a visit by a river authority inspector at 4.30 pm found that the tanks were overflowing at an estimated 250 gallons per hour. Investigations revealed that the discharge level of the biochemical oxygen was at 160 milligrammes per litre when in fact the permitted demand was 20 milligrammes or less. Investigations also revealed that brambles, leaves and ferns had entered the strainers of the pump and blocked the impellers. The appellants denied knowledge of this blockage, arguing that their fitter had inspected and emptied the pumps on a weekly basis, and that the general foreman had regularly monitored the tanks on the day in question. The
6 The former was removed from site by tankers and did not form part of the litigation.
101 appellants were charged with ‘causing’ polluting matter to enter the river contrary to section 2 (1) of the Rivers (Prevention of Pollution) Act 1951. The justices convicted Alphacell. The Divisional Court dismissed their appeal against the conviction. Alphacell appealed to the House of Lords.
Addressing the key issue of whether Alphacell had ‘caused’ polluting matter to enter the river contrary to section 2 (1) of the Rivers (Prevention of Pollution) Act 1951, the House held that the offence to ‘cause’ requires some active operation or chain of operations before liability can arise whereas the offence to ‘knowingly permits’ ‘involves a failure to prevent the pollution. This failure must, however, be accompanied by knowledge.7 ‘Knowingly permits’ is thus designed to ‘deal with the type of a case in which a man knows that contaminated effluent is escaping over his land into a river and does nothing at all to prevent it’.8 It is not so much that the defendant did not consider the risk of matter entering controlled waters but knew that matter was escaping, had the knowledge and power to do something about it, yet failed to do anything about it. ‘Knowingly permits’, therefore, is concerned with the defendant’s knowledge of the polluting activity, not the environmental violation. This was reiterated by Lord Hoffmann in National Rivers Authority v Empress Car Company (Abertillery) Ltd. He explained, the structure of the subsection imposes liability under two heads: ‘the first limb simply for doing something which causes the pollution and the second for knowingly failing to prevent the pollution’.9
The requirement that the defendant simply must have the knowledge that he or she was engaging in the activity that led to the water pollution rather than the knowledge that his or her acts were unlawful at the time of their actions is less sympathetic towards the defendant. It is also in keeping with countries such as America. For example, in the touchstone environmental case law in this area of United States v International Mineral
7 [1972] AC 824, 834 (Lord Wilberforce). 8 [1972] AC 824, 848 (Lord Salmon). 9 [1999] 2 AC 22, 27.
102 and Chemical Corporation the Supreme court construed a statute which gave the Interstate Commerce Commission the power to formulate regulations for the safe transportation of corrosive liquids and to punish anyone who ‘knowingly’ violates such regulation.10 The court held that ‘knowingly’ referred to the acts rather than the violation of the regulation.
4.2.2 Schulmans Incorporated Ltd v National River’s Authority [1993] – Constructive Knowledge
Spillage of fuel oil near a tank on the accused’s premises in Schulmans Incorporated Ltd v National River’s Authority (1993) found its way into the drainage system on its land and from there into a nearby watercourse.11 This was brought to the appellant’s attention on 1st September 1989 at 10.00 am. Although arrangements were made after the polluting event to clean the drainage system, the cleaning operation did not happen. At first instance, the justices convicted the accused of ‘knowingly permitting’ the entry of matter into controlled waters in that the accused had ‘shut their eyes to the obvious’ but the conviction was quashed following an appeal to the Queen’s Bench Division.12 The court was not satisfied that the accused had ‘knowingly permitted’ the escape of fuel oil and hence the ensuing water pollution, especially because there was no evidence to suggest that the company could have taken preventative action sooner than it did, or that there was an escape of oil which it could have prevented but failed to prevent. Accordingly, they had not been shown to have permitted the entry of the oil into the watercourse.
The conviction was quashed but the significance of Schulman from the perspective of this thesis is in its support for the notion of ‘constructive knowledge’ within the context of ‘knowingly permits’. Legatt L.J. did not explain this concept of mens rea but indicated that judges are permitted to attribute a certain amount of knowledge to the defendant
10 (1971) 402 U.S. 558. 11 Schulmans Incorporated Limited v National Rivers Authority (1993) 1 Env LR at D1. 12 ibid.
103 if the defendant fails to provide any evidence about the absence of knowledge - irrespective of whether that person has the knowledge. Constructive knowledge, therefore, means that the accused ‘should have known’ rather than ‘must have known’ of the commission of the criminal environmental activity to establish liability for the offence. Legatt L.J. did not explain his rationale for defining ‘knowingly permits’ with reference to constructive rather than actual knowledge but one plausible assumption is that the court may have wanted to widen the meaning of ‘knowingly permits’ to better protect the water environment and bring home the message of environmental protection that has started to attract domestic, European and international attention.
The notion of ‘constructive knowledge’ advocated in Schulman is not new to the legal world. Devlin J. in Roper v Taylor’s Central Garages) coined the new phrase ‘knowledge of the second degree’,13 and R v Sleep [1861] provided the first judicial approval of the idea that some lesser degree of knowledge than actual knowledge would be sufficient to establish mens rea. The judge in Sleep had ruled that the accused could not be convicted for possession of government property unless the jury found that either he knew that the goods came from government stores or he had ‘wilfully’ shut his eyes to the fact.
Alphacell was rather succinct in its coverage of ‘knowingly permits’ because the case fundamentally focused on their interpretation of ‘causing’. Schulman, however, offered some important guidance for future judges tasked with the interpretation of ‘knowingly permits’. The following analysis, therefore, primarily refers to Schulman.
The notion of ‘constructive knowledge’ makes it easier for the prosecution to satisfy the mens rea of ‘knowing permits’ because the court need not be convinced that the accused possessed the necessary knowledge to establish liability for the water pollution. It arguably encourages openness and honesty in courtroom dealings because in removing the need for actual knowledge the burden of presenting the relevant information rests with the accused. The prosecution can prove that the defendant water polluter acted
13 [1951] 2 TLR. 288.
104 with knowledge without encountering an insurmountable burden of proof. It is thought that this should motivate actual and potential offenders to be more mindful and accepting of the necessity of preventive environmental action. They could, for example, implement environmental auditing, an environmental management tool for measuring the environmental effects of certain activities against set criteria or standards where an environmental auditor studying an organisation’s effects in a systematic and documented manner to produce an environmental audit report (ex post).
The broader question that the offence of ‘knowingly permits’ raises is whether passive behaviour should provide a basis for protecting the water environment. Considerable controversy rages over whether and to what extent the law ought to regard inactivity as a sufficient basis for liability.14 It is beyond the scope of this thesis to explore this issue in detail although the following is said as an introductory and brief treatment intended to highlight the gist of the contrasting views and the complexity of the passive/active distinction for water pollution prevention.
The argument starts from the premise that water pollution prevention laws do and should criminalise omissions to act just as much as it criminalises positive acts. If criminal environmental liability was based solely on acts, the meaning of ‘causing’ and ‘knowingly permits’ may either be stretched too far to include omissions or constricted to only recognise the narrowest set of circumstances as giving rise to criminal (environmental) liability. Either outcome would undermine the legislative goal of water pollution prevention. The failure to punish inactivity would also arguably prevent industries from taking their environmental responsibilities seriously for the message would be that the law does not take a harsh line against those that passively pollute waters including those that believe that they are economically justified in doing so. Indeed, the high status of those that cause the most (environmental) harm frequently reject the proposition that criminal definitions should apply to them. Powerful operators whose activities impacts
14 See for example, A. Ashworth, Positive Obligations in Criminal Law (Hart Publishing 2013); A. Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424.
105 on the environment ‘possess the ready-made rationalisation that a law imposing limits to the harm they cause would implicitly endanger the core values underpinning economic development and therefore be damaging to the collective wellbeing’.15
The counter argument is that it is not appropriate to criminalise omissions to act. There is no way one can cause an event by doing nothing or by not doing anything to prevent wrongdoing.16 Leavens developed this argument by recommending the elimination of the commission and omission distinction claiming that it is artificial, unfair, and unnecessarily limits the courts’ ability to evaluate the chain of causality between the defendant’s conduct and the prohibited harm. The courts should instead consider the full course of the defendant’s behaviour in the light of the common-sense purpose of criminally prohibiting certain harms.17 The criminal law should mainly be interested in assessing whether the conduct of the accused has caused the result rather than attempting to define acts and omissions to establish whether or not an individual had a duty to act in certain circumstances.
Alphacell and Schulman’s view of ‘knowingly permits’ made some important inroads into the meaning of the offence. They demonstrated a judicial tendency to give ‘knowingly’ a broad interpretation which is helpful in widening the circumstances in which a defendant could be liable for water pollution and building the kind of society anticipated and intended by the 1876 legislature when the goal of water pollution prevention was first established. That said, the court in Schulman approached the interpretation of ‘knowingly permits’ and the subject of water pollution prevention myopically in the sense that it lacked a more holistic approach incorporating the broader legal environmental landscape and the legislative purpose. From the internal coherence perspective, Schulman did not, therefore, go as far as Alphacell in furthering the goal of water pollution prevention.
15 M. Hall, Victims of Environmental Harm: Rights, Recognition and Redress Under National and International Law (Routledge, 2013) 246. 16 B. Hogan, ‘Omissions and the Duty Myth’ in P. Smith (ed.) Criminal Law: Essays in Honour of J.C. Smith (Butterworth 1987) 85. 17 See A. Leavens, ‘A Causation Approach to Criminal Omissions’ (1988) 76 California Law Review 548.
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The remarkably brief judicial analysis in both Alphacell and Schulman generally left the nature, scope and meaning of the offence of ‘knowingly permits’ vague and open to speculation. There are many questions and uncertainties about the offence that future courts may need to clarify. It may, however, be a while before such questions are judicially addressed because prosecutions for ‘knowingly permits’ are likely to be a very small percentage since many prosecutions for water pollution have been under ‘causing’.18
4.3 Alphacell v Woodward (1972): ‘Causing’ Water Pollution
Alphacell is the leading authority on the judicial interpretation of the key water pollution offence of ‘causing’ matter to enter controlled waters. While much of the discussion in this case centred on the meaning of this offence, the subject of water pollution was just as important as the words in the legislative provision. This Chapter assesses the extent to which Alphacell’s interpretation of the general water pollution offence of ‘causing’ promoted the goal of water pollution prevention in relation to the issues posed in this case – commission and omission (passive/active distinction), causation (in fact), strict liability, and vicarious liability. Alphacell is one of the very few ‘causing’ cases where the courts have discussed all four of these issues. The case reflects the courts at its best as far as the notion of internal coherence and the subject of water pollution prevention are concerned.
The appellants were charged with ‘causing’ polluting matter to enter a nearby river contrary to section 2 (1) of the Rivers (Prevention of Pollution) Act 1951 after a river authority inspector found that the tanks were overflowing and that brambles, leaves and ferns had blocked the impellers. Alphacell proposed four arguments in their defence: (i) they had not ‘caused’ the polluting matter to enter the river; (ii) knowledge of the entry had to be proved; (iii) they could not be convicted of something that had occurred before
18 See Chapter Five.
107 they became aware of it; and (iv) they had not committed any act that had resulted in the polluting matter entering the river. By contrast, the river authority proposed three arguments: (i) the defendant had ‘caused’ the polluting matter; (ii) there was no requirement of knowledge and that; (iii) the defendant had not done everything in their power to ensure the effective operation of the machinery that was responsible for ensuring that the tanks did not overflow.
The justices held that Alphacell was liable for ‘causing’ the entry of matter into controlled waters by their failure to ensure that the relevant apparatus was maintained in a satisfactory condition. The Divisional Court held that the justices were correct to find guilt even though ‘cause’ is an elusive word whose meaning can vary depending on the context. Alphacell had produced the polluting effluent on their premises, deliberately channelled the effluent out to the riverbank such that its entry into the river was inevitable and were entirely in control of the maintenance system and pumps. They also had the autonomy to not only decide how many pumps and of what capacity there should be at their manufacturing plant but to install an automatic warning device to indicate that the tank levels were becoming dangerously high. In the Divisional Court, Lord Parker C.J. and Widgery L.J. supported a finding of guilt. Bridge J., however, dissented. Switching on the plant may be ‘a’ cause if the pumps do not work but it is not ‘the’ cause; and that if with a penal statute two possible constructions are open to the court, that which is most favourable to the accused must be chosen as correct because the legislative drafter could not have contemplated that the word ‘causes’ could involve criminal liability without actual knowledge by the defendant. On appeal to the House of Lords, Alphacell contended that they had not ‘caused’ the pollution. The House dismissed their appeal, establishing the following four points.
4.3.1. Alphacell v Woodward [1972]: Commissions and Omissions (Passive/Active Distinction) – Active Operation or Chain of Operations
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The House established that a person cannot be guilty of ‘causing’ polluting matter to enter controlled waters unless ‘he does some positive act in the chain of acts and events leading to that result’, 19 that is, only positive acts are capable of operating as causes. The House unanimously established that Alphacell was guilty of ‘causing’ water pollution because it was the operation of the works that had led the liquid to flow from the tanks and into the river. There was no intervening act of a third party or God.20 Everything in Alphacell’s operation was under their control including the plant’s design, installation of the equipment, and the safeguards for preventing debris from being sucked in. Lord Wilberforce said that this is ‘a clear case of causing the polluter water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the appellants.’21
Alphacell tried to rely on Moses v Midland Railway Company but the facts were distinguished.22 Due to a defect in a tank wagon travelling on the defendant’s railway, creosote leaked into river containing salmon, killing some fish. However, in this case the wagon was not owned by the defendants, they were not responsible for its design or maintenance, and neither did they exercise control over the defective tap or have the knowledge or means of knowledge of the patent defect causing the leak. The court dismissed the appeal against the acquittal. Avory J. said that a person cannot be said to ‘cause’ liquid to flow when he is ignorant that it is flowing and could not by exercise of reasonable care have prevented it.23
On the one hand, it is arguable that the vague and ambiguously worded legal principle active operation or chain of operations can undermine the legislative message of water pollution prevention. This would happen if judges are wary not to stretch the meaning of legal language too far for this would mean that only a select and precise number of
19 [1972] AC 824, 834 (Lord Wilberforce). 20 [1972] AC 824, 846 (Lord Cross of Chelsea). 21 [1972] AC 824, 834 (Lord Wilberforce). 22 [1915] LT 451. 23 ibid.
109 incidents would fall within the remit of the relevant offence.24 On the other hand, it is arguable that the vague and ambiguously worded principle of active operation or chain of operations can offer judicial discretion in the positive sense. Judges are granted the freedom to fill gaps unanticipated by the legislature, incrementally adjust legislative meaning to fit changing social ideas, and evaluate and reach decisions ‘on the basis of, or at least with a good and sympathetic understanding of the social and normative environment in which the litigants acted and in which they live’.25 In this sense, judicial discretion may help widen the target audience that the 1876 sought to capture when they first established the offence to ‘cause’ water pollution. This is an important contribution to the law of water pollution prevention, particularly from the perspective of internal coherence, because as the case law in Chapter Five will show, water discharges can emerge through a variety of circumstances. The point is best summed up in Lord Salmon’s analogy that a person may ‘deliberately smash a porcelain vase; he may handle it so negligently that he drops and smashes it; or he may without negligence slip or stumble against it and smash it. In each of these examples, no less in the last than in the other two, he has caused the destruction of the vase’.26 With the vague and ambiguous legal principle of active operation or chain of operations judges can also interpret legislation in accordance with wider legal environmental developments that endorse the core purpose behind the water pollution provision such as the principles of prevention and sustainable development that are now part of the domestic and European environmental regimes.
4.3.2 Alphacell v Woodward [1972]: Causation (in Fact)
To establish whether a defendant is guilty of a result crime, it is necessary to draw an initial distinction between problems of ‘causal connection’ and of ‘causal responsibility’. Once a factual link between the conduct and the result that the accused is alleged to have caused has been established, it is necessary to address the second more difficult
24 See Chapter Six. 25 C. E. Schneider in The Uses of Discretion (ed) (OUP, 2001) 64. 26 [1972] AC 824, 848 (Lord Salmon).
110 question of whether that conduct was a sufficient cause in law. Causal connection is sometimes called ‘factual causation’. This contrasts with causal responsibility which is sometimes called ‘imputable causation’ or ‘legal causation’. The first question is, therefore, factual (did the defendant actually cause the harm?) and the second question is of policy (should the defendant be responsible for that which he or she caused?).
Factual causation can be established through the ‘but for’ test illustrated in the criminal law case of R v White.27 The defendant put cyanide in his mother’s bedtime drink but in a lesser concentration than was necessary to kill her. White was charged with her murder when she was found dead the next morning, but it was eventually established that his mother had consumed very little of the poison and had coincidentally died of natural causes. He was, therefore, guilty of attempted murder. The court established the ‘but for’ test of causation, according to which White could not be convicted unless it could be shown that ‘but for’ his actions the victim would not have died. The defendant could not be convicted of murder because the test was not met. By contrast, legal causation is a narrower and more subjective concept. Not every cause in fact is a cause in law. To be so, it must be an ‘operating and substantial’ cause of the consequence in question rather than the only or principal cause. This is illustrated in R v Smith where the defendant’s appeal against the conviction for murder was dismissed on the basis that an intervening event cannot break the chain of causation if the defendant’s conduct is still an operating and substantial cause of the result despite the other operative causes.28 Identifying a legal cause in order to apportion criminal liability from amongst a possible multitude of factual causes involves a subjective common sense approach rather than an objectively measurable criterion. In practice, this means having to look for some kind of abnormal and culpable behaviour.
On the question of whether Alphacell caused the water pollution within the meaning of section 2 (1) of the Rivers Prevention of Pollution Act 1951, the House agreed that the
27 [1951] 2 KB 124. 28 [1959] 2 QB 35.
111 offence to ‘cause’ must be given a ‘common sense meaning’29 and that ‘what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory’.30 The House referred to Viscount Simon in Yorkshire Dale S.S.Co Ltd. Minister of War Transport: ‘the interpretation to be applied does not involve any metaphysical or scientific view of causation. Most results are brought about by a combination of causes’.31
There were three possible options available to the House in answer to the specific question about the sort of condition that must be attributed to the accused for their action to count as a cause of the water pollution in fact. The first was the action that must be necessary to the outcome (application of the but for test). The second was the complex set of conditions sufficient for the outcome, and the third was a more quantitative mode of analysis requiring the action to be a ‘substantial factor in’ or ‘contribute to’ the outcome.32 The House selected the conditions from Alphacell’s whole process and complex operation as the sort of condition to count as the cause of the water pollution. This was made plain by Lords Salmon and Wilberforce and Viscount Dilhorne.
Lord Salmon opined that the facts ‘make it obvious that the appellants in fact caused the pollution . . . The appellant had been responsible for the design of the plant: everything, within their work was under their control; they had chosen all the equipment . . . what they did was something different in kind from the passive storing of effluent which could not discharge into the river save by an act of God or, as in Impress (Worcester) Ltd v Rees [2 All ER 357]’.33 Lord Wilberforce agreed that this was a clear case of ‘causing’ the entry of matter into waters and that Alphacell had in fact caused the pollution: ‘the whole complex operation which might lead to this result was an operation deliberately conducted by the appellants and I fail to see how a defect in one stage of it, even if we
29 [1972] AC 824, 834 (Lord Wilberforce). 30 [1972] AC 824, 848 (Lord Salmon). 31 [1942] AC 691, 698. 32 A. Honore and G. Gardner, ‘Causation in the Law’
112 must assume that this happened without their negligence, can enable them to say they did not cause the pollution’.34 It was further asserted that the justices’ ‘conclusion on the facts was right’ for the appellants had caused this discharge by a series of acts. First, the installation of their plant and equipment in such a way as to carry the polluting matter down to the tanks beside the river from when it could only overflow into the rivers unless it was pumped away. Secondly, the carrying on of a manufacturing process which produced polluting matter and carried it into the tanks. And thirdly, the failure of the pumps to operate – a factor that was entirely under Alphacell’s control.35
Alphacell’s approach to factual causation offers much potential to further the goal of water pollution prevention. To make the distinction between class of events rather than a particular event was to take an open-minded approach to the facts giving rise to the prosecution. The law instantly dismissed several immediate factors (such as faulty equipment or latent defects) that may have led to a narrow interpretation of the offence to ‘cause’ the entry of matter into controlled waters sufficient to not only absolve the water polluter from criminal environmental liability but undermine the goal of water pollution prevention. This approach to establishing the causal link between the act and the result alludes to what Plakokefalos describes as the alternative to the but-for test – the necessary element of a sufficient set (NESS) test.36 Hart and Honoré, on the basis of the work of Hume and Mill, first advocated the test. It was later refined by Wright. In its refined form, the test suggests that a ‘particular condition is a cause of (contributed to) a specific result if and only if it was a necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of the result’. This test arguably copes better with the notion of internal coherence than the but for test. First, the NESS test allows for a more nuanced approach than the crude yes/no choice offered by the but- for test. It is a test of ‘weak necessity and strong sufficiency’ which means that the act in question need not be a necessary element for the set of conditions necessary to bring about the unwanted result yet at the same time the condition need not be sufficient on
34 ibid. 35 [1972] AC 824, 829 (Viscount Dilhorne). 36 I. Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Over determination: In Search of Clarity’ (2015) 26 (2) European Journal of International Law 471.
113 its own in order to bring about the harmful outcome. Second, the test turns the judicial attention to the question of what happened rather than pointing to the question of what might have happened. Third, the NESS test does not single out the act of the defendant as being ‘the’ cause of the harmful outcome. It must be ‘a’ cause of the conditions that bring about an outcome. For these reasons, the NESS test is more inclusive in that it may accommodate a number of different types of conduct and capture them as a cause of the outcome.37
4.3.3 Alphacell Ltd v Woodward [1972]: Strict Liability
A literal definition of mens rea is ‘guilty mind’. It is founded on the notion that a court should not find a person guilty of a criminal offence unless the defendant has a blameworthy state of mind. The general rule, expressed in the maxim, actus non facit reum nisi mens sit rea, is that an offence can be committed only where criminal conduct is accompanied by some element of fault (the precise fault element required will depend on the offence in question).
Historically, the criminal law started from the presumption that strict liability provides an improper basis for liability. Unsurprisingly, the presumption that some form of mens rea must be present before criminal liability can ensue - whether it is intent, knowledge or recklessness – was stated by judges dealing with criminal cases on several occasions. In Fowler v Padget Lord Kenyon C.J., for example, explained that it is a ‘principle of natural justice, and of our law, that actus reus non faci reum nisis mens rea sit rea. The intent and the act must both concur to constitute the crime’.38 In the commonly recited statement in Sherras v De Rutzen Wright J. said that mens rea ‘is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, or both
37 ibid. 38 (1798) 7 TR 509.
114 must be considered’.39 These 18th Century sentiments were recently restated in B (a minor) v DPP and DPP v K.40 The House of Lords declared that the law was far less tolerant of the argument that a statute should be interpreted as imposing strict liability due to the constitutional presumption of mens rea in offences. Lord Kerr similarly stated in R v Brown that the constitutional principle that mens rea is presumed in order to establish criminal liability is strong and cannot be ‘displaced in the absence of clear statutory language or unmistakeably necessary implication’.41 It is also undeniable that where the statutory offence is grave or ‘truly criminal’ and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea. His Lordship cited Lord Nicholls in B as confirmation of the strengths of the constitutional principle in favour of strict liability.
Despite the presumption of mens rea, English criminal law has increasingly recognised the doctrine of strict liability. The idea that ‘mens rea or negligence need not be proved in respect of one or more elements of the actus reus of an offence’ covers a wide range of crimes.42 Strict liability crimes are often statutory and mainly involve offences triable in the magistrates. For example, several statutory offences involve possession of, for example, offensive weapons (Prevention of Crimes Act 1953), drugs (Misuse of Drugs Act 1971) and articles for use in burglary, theft or deception (Theft Act 1968). Strict speaking, these are not strict liability offences but because their mens rea requirement is minimal, they are analogous to strict liability offences. A rise in the introduction of strict liability offences (on matters of regulation) by Parliament suggest that the doctrine is permeating and underpinning our regulatory system. The doctrine of strict liability has been the subject of much academic attention. The literature is profuse and the arguments diverse.43 It is impossible in a work of this length to do justice to the many arguments and concepts that surround the doctrine of strict liability.
39 [1895] QB 918. 62 TLR 462, 463. 40 [2000] UKHL 13, B v DPP [2000] 2 AC 248. 41 [2013] UKSC 43. 42 Strict liability is distinguished from ‘absolute’ liability which denies the defendant a defence. 43 For recent literature on strict liability, see, for example: T. Lotner, ‘Liability for Environmental Damages from the Offshore Petroleum Industry: Strict Liability Justifications and the Judgment-Proof Problem (notes)’ (2016) 43 (2) Ecology Law Quarterly 483.
115
Despite the increasing recognition of strict liability offences under English criminal law, this area of the law has provoked strongly held opinions that sit at opposite ends of the spectrum.44 To some, strict liability is necessary and justified. For example, according to Herring fairness demands that those that endanger others when undertaking risky profit earning activities should not be allowed to escape criminal liability by saying that he or she did not foresee that the act might harm someone.45 The distinguished social scientist Lady Wooton similarly argued that if the primary function of the court is conceived as the prevention of forbidden acts ‘there is little cause to be disturbed by the multiplication of offences of strict liability. If the law says that certain things are not to be done, it is illogical to confine this prohibition to occasions on which they are done from malice aforethought’.46 For others, however, making crime punishable without regard to a defendant’s state of mind forms an ‘improper basis for the imposition of criminal sanctions since it can lead to the punishment of the ‘faultless’’,47 particularly those that have ‘behaved impeccably and who should not be required to alter their conduct in any way’.48 Wasserstrom, for example, argued that the proliferation of the strict liability criminal offence (in federal and state US) has ‘occasioned the vociferous, continued, and almost unanimous criticism of analysts and philosophers of the law’.49 Hall, the most active and insistent critic of strict liability, consistently denounced the doctrine as an ‘anathema to the coherent development of a rational criminal law’, asking what then remains but ‘the myth that through devious, unknown ways some good results from strict liability in penal law?’50 Ashworth, the most prominent opponent of strict liability in recent times, promoted the rule of law (wrong to convict and punish without giving the defendant a ‘fair opportunity’ for doing what the law requires and abstaining from the forbidden) and ‘censure based’ arguments (requiring fault because the failure to do
44 For example, see P. Inceborg, ‘Strict Liability: Its Place in Public Welfare Offences’ (1978) 20 Criminal Law Quarterly 445; Baroness Wootton, Crime and the Criminal Law (2nd edition, Stevens 1981); F. J. Remington, et al, ‘Liability Without Fault Criminal Statutes’ (1965) Wisconsin Law Review 625. 45 J. Herring, Great Debates in Criminal Law (Palgrave MacMillan 2009) 239. 46 Baroness Wootton, Crime and the Criminal Law (2nd edition, Stevens 1981) 51. 47 See G. Richardson, ‘Strict liability for Regulatory Crime: The Empirical Research’ (1987) Criminal Law Review 29. 48 D. Ormerod, Smith and Hogan in Criminal Law (11th edition, OUP 2005) 159. 49 R. A. Wasserstorm, ‘Strict Liability in the Criminal Law’ (1959) 12 Standard Law Review 731. 50 ibid.
116 so imposes public condemnation without properly laying the foundation for it) to explain why strict liability is not influential in the common law.51
Alphacell contended that liability for the general water pollution offence of ‘causing’ cannot arise without knowledge or negligence. The offence should be accompanied by ‘knowingly’ in the way that it does with ‘permits’. The House confirmed that the offence to ‘cause’ the entry of matter into controlled waters is a strict liability offence and that the relevant section should not be read to say ‘if he knowingly causes’.52 Viscount Dilhorne did not think that the offence to ‘cause’ was, or should be, interpreted as making an offence only if the accused intended to pollute after having regard to the pollution provision and the mischief which it was intended to deal with.53 Lord Pearson similarly said that knowledge is not a necessary ingredient for the offence of ‘causing’ because the wording of the legislative provision makes a clear distinction between ‘causes’ and ‘knowingly permits’ and that mens rea is not a necessary ingredient ‘in an offence of this kind, which is in the nature of a public nuisance’. The legal significance of this was to render Alphacell incompatible with the legal presumption in favour of mens rea generally and Lord Reid’s commonly cited assertion in the then recent House of Lord’s case of Sweet v Parsley – applied in the New Zealand courts in Queen v Strawbridge54 and Police v Creedon.55 This stated that ‘it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted’.56 Of course, Sweet can be distinguished from Alphacell to the extent that the drug offence in question was truly criminal whereas the pollution was classed by the House as not criminal in any real sense but which in the public interest is prohibited.
51 A. Ashworth, Positive Obligations in Criminal Law (Hart Publishing 2013) 121. 52 [1972] AC 824, 842 (Lord Pearson). 53 [1972] AC 824, 841 (Viscount Dilhorne). 54 (1970) NZLR 909. 55 (1976) 1 NZLR 571. 56 [1970] AC 132, 148.
117
This Chapter claims there are three key grounds for suggesting strict criminal environmental liability can support the legislative goal of water pollution prevention: (i) condemning such wrongdoing (condemnation) (ii) eliminating the potentially complex and time-consuming task of establishing fault (ease of prosecution) and (iii) deterring water pollution (deterrence). These arguments support Lord Hoffmann’s assertion in National River’s Authority v Empress Car Company (Abertillery Ltd) that ‘It is immediately clear that the liability imposed by the subsection is strict . . . Strict liability is imposed in the interests of protecting controlled waters from pollution’.57 Each argument is explained further.
4.3.3.1 Condemnation
Strict liability offences can deter and prevent water pollution through condemnation. To disregard the defendant’s state of mind when establishing criminal liability arguably defines the wrongdoing as so unacceptable that it matters not whether the incident occurred innocently, carelessly, accidentally, or negligently, or whether time and money had been spent in addressing the environmental risk. Water polluters are told that the law finds it hard to sympathise with water polluters and that ‘such conduct will not be tolerated regardless of the actor’s intent’.58 Criminal condemnation may mark the defendant environmental offender, particularly business organisations, in a way that may impact upon their reputation and profit levels. Indeed, this potential threat to the regard in which the company is held can be of much benefit in motivating corporate organisations to focus on their operations in a manner that can reduce the likelihood of environmental breaches yet also improve their relationship with environmental goals such as that relating this thesis. Indeed, one of Laurie’s main argument was that of condemnation, that strict liability serves as an important function in setting firm limits on conduct that ‘society is loath to tolerate’. The doctrine of strict liability is ‘attractive as a powerful public statement of legislative intolerance for certain behaviour’ and by
57 [1998] 1 All ER 481, 489. 58 L. L. Levenson, ‘Good Faith Defenses: Reshaping Strict Liability Crimes’ (1993) 78 Cornell Law Review 401, 422.
118 labelling an offence as strict liability, the legislature ‘affirms society’s interest in being protected from certain conduct. In this sense, strict liability expresses emphatically that such conduct will not be tolerated regardless of the actor’s intent’.59
Indeed, strict liability as an express statement of condemnation was also advocated by Lord Bingham in the water pollution case of R v Milford Haven Port Authority: ‘Parliament creates an offence of strict liability because it regards the doing or not doing of a particular thing as itself so undesirable as to merit the imposition of criminal punishment on anyone who does or does not do that thing irrespective of that party’s knowledge, state of mind, belief or intention’.60
4.3.3.2 Ease of Prosecution
Larkin argued that establishing actus reus generally takes less work than establishing the relevant state of mind. 61 The second main argument to link the doctrine of strict liability to the goal of water pollution prevention is based on administrative efficiency. Having regard to the difficulty of proving the mental culpability (along with the number of criminal cases that appear before the courts) proof of fault would be too great a burden (in time and money) to place on the prosecution. Fault free offences are easier to enforce.
This argument as to ease of proof is well recognised. Abbot, for example, said that strict liability can assist regulatory authorities in their quest to prevent polluting incidents and minimise environmental harm as far as procedure is concerned. No-fault offences are easier to enforce in comparison to mens rea offences because fault free offences are less onerous to prepare.62 Herring similarly said that strict liability offences are easier for the
59 ibid, 425. 60 [2000] JPL 943 (Lord Bingham). 61 P. J. Larkin, ‘Strict Liability Offences, Incarceration, and the Cruel and Unusual Punishments Clause’,
119 prosecution to prove because there is no need to prove the defendant’s state of mind.63 Indeed, Lord Salmon in Alphacell was keen for the general water pollution offence of ‘causing’ to operate as a no-fault offence for ease of prosecution. If it was held that a conviction could not be secured, ‘unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred’. Many rivers which were filthy would become filthier still and many rivers which were clean would lose their cleanliness’.64 Lord Wilberforce added: ‘in my opinion, complication of this case by infusion of the concept of mens rea and its exceptions is unnecessary and undesirable.’65
4.3.3.3 Deterrence
A further view is that the doctrine of strict liability helps deter environmental wrongdoing. The doctrine induces operators to take preventive measures necessary to avoid or reduce the risk of an environmental breach through prevention and self- regulation. Organisations that are tempted to lower their environmental efforts and/or take corrective environmental action only after an environmental violation has occurred would be deterred from doing so knowing that they will not receive much judicial sympathy. The assumption is that corporations - a rational entity that attaches much value to profit and prestige – will be careful to see that their conduct is safely undertaken knowing that an environmental conviction could lower their financial value by revealing information about their misconduct to their customers and the general public. Indeed, Coman takes a financial stance on the preventive value of strict liability. Rational actors who bear the costs of their wrongdoing will take all cost-effective measures to economise that liability and will make efficient decisions and change its actions to internalise the cost of the damage by its activities.66
63 J. Herring, Criminal Law, Text, Cases and Materials (6th edition, OUP 2014) 227. 64 [1972] AC 824, 834 (Lord Wilberforce). 65 ibid. 66 H. Coman, ‘Balancing the Need for Energy and Clean Water: The Case for Applying Strict Liability in Hydraulic Fracturing Suits’ (2012) 39 Environmental Affairs Law Review 131, 148.
120
The link between prevention and strict liability has attracted support. Richardson argued that the primary role of regulation is preventive rather than retributive and that the doctrine of strict liability is justified in so far as it furthers deterrence and aids the enforcement of the regulatory requirements.67 Herring similarly argued that where a person or company is about to engage in an activity which is potentially dangerous (for example, an industrial activity that may cause pollution) it would be important for them to not only take ‘reasonable steps’ to prevent the harm but to do everything possible that it can. The imposition of strict liability may encourage the person or company to ‘pull out every stop to prevent pollution’.68 Lotner made the same point,69 as did Roscoe Pound that some ‘statutes are not meant to punish the vicious but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals’.70
The commentators above are arguably correct to advocate a link between strict liability and crime prevention if it is accepted that the water discharges discussed in Chapters Four and Five may not have occurred had the defendants taken preventive measures through self-regulation. They could have taken greater care in designing and building plants,71 used better quality materials during the production process,72 implemented equipment showing early signs of failure, adopted tighter controls over substance storage,73 and/or exercised greater scrutiny in selecting, training and supervising employees.74 Viscount Dilhorne acknowledged this argument in Alphacell when he thought that the appellants ‘could have taken the simple step of installing a warning system [and that] they could have designed their system so that the polluting matter
67 Above n. 47. 68 Above n. 63. 69 T. Lotner, ‘Liability for Environmental Damages from the Offshore Petroleum Industry: Strict Liability Justifications and the Judgment-Proof Problem (notes)’ (2016) 43(2) Ecology Law Quarterly 483, 486. 70 R. Pound, ‘The Spirit of the Common Law’ https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1000&context=lawfacpub accessed 22 April 2018. 71 Price v Cromack [1975] 2 ALL ER 113. 72 CPC (UK) Limited v NRA [1995] Env LR 131. 73 Alphacell v Woodward [1972] AC 824. 74 ibid.
121 would never come near the river at all but be pumped straight back up to the reservoir’.75 Critics may argue that the deterrent effect of strict liability is over-emphasised. For environmental offences such as ‘causing’ water pollution, the important deterrent factor may not so much be the chances of being convicted but being caught. In many cases the chance of being caught is not particularly high because enforcement official may lack the resources to monitor a huge number of industries and environmental offenders. Even with the most serious or persistent environmental offenders, the chance of prosecution is limited because enforcement officials are granted much discretion under the environmental prosecution policy.
Despite the above arguments about the role of strict liability in pollution prevention, it could equally be posited that that doctrine achieves the opposite if operators refuse to take preventive environmental action knowing that the court will not be sympathetic towards them irrespective of their moral innocence or careful scrutiny of business operations to prevent environmental pollution. This view of strict liability relates to a ‘may as well be hung for a sheep as for a lamb’ argument by Howard. He argued that strict liability dissuades individuals and business operators from being ‘more careful in their dealings’ and more scrupulous in their supervision and suppliers:76 ‘the assertion that a potentially inefficient or thoughtless member of society will more effectively mend his ways if he knows that no excuse will be allowed ... is no more than an assumption for which no evidence can be produced in support’.77
A distinct but related argument by Levenson is that strict liability laws are inefficient because they tend to over deter individuals. If a strict liability defendant can be punished for any conduct that crosses a certain line, the defendant will be inclined to abstain from all activities that could potentially result in the illegal behaviour.78 The same was judicially advocated by Keane J. in Shannon Regional Fisheries Board v Cavan County Council, that
75 ibid, 841 (Viscount Dilhorne). 76 C. Howard, Strict Responsibility (Sweet and Maxwell 1962) 24-26. 77 Askey v Golden Wine [1948] 2 All ER 35, 38 (Lord Denning). 78 Above n. 58 at 427.
122 strict liability encourages laxer standards because the expenditure of time and money on preventive measures is of no avail to absolve the accused from criminal environmental liability.79 Strict liability would have the overall implication of producing a sense of grievance and a loss of confidence in the administration of, and compliance with the law. This would most likely be the case where two defendants have allowed the same type and quantity of matter to enter controlled waters, but one escapes liability for the offence of ‘knowingly permit’ because the mens rea was not successfully proved and the other is convicted of the offence to ‘cause’ because mens rea need not be proved.
The link between strict liability and prevention is also difficult to defend because environmental offenders do not operate in a vacuum. They can, therefore, be influenced by a multitude of factors other than the strict liability element of an offence when deciding whether to violate the law. Such factors include profit levels, reputation and self-worth, the likelihood of detection and/or prosecution, and sentencing trends. Kagan and Scholz develop this argument when they suggest that non-compliance can occur through the ‘amoral calculators’ (driven by financial considerations because they primarily seek to optimise profit levels), ‘political citizen’ (will follow the law if the regulations are not arbitrary or unreasonable) and the ‘organisational incompetent’ (will attribute regulatory infringements to a failure to adequately oversee subordinates, calculate risks intelligently and so forth).80
Equally and by contrast, those that are not aware of the laws that they are meant to comply with (including strict liability offences) are theoretically non-deterrable and stand in the same position ‘as the plainest lunatic under the M’Naghten test who does not know the nature and quality of his act, or if he does know it, does not know that the act is wrong’.81 There will no doubt be members of the public who will not know what laws
79 [1996] 3 IR 267. 80 See R. A. Kagan and J. T. Scholz, ‘The Criminology of the Corporation and Regulatory Enforcement Strategies’ in K. Hawkins and J. M. Thomas (eds.) Enforcing Regulation (Kluwer-Nijhoff Publishing 1984) 67- 86. 81 H. M. Hart, The Aims of the Criminal Law, Law and Contemporary Problems,
123 they are supposed to comply because virtually every year for the last twenty years there has been a major piece of legislation which when taken together ‘touch the length and breadth of the criminal justice system, changing the contours, restructuring everything from policing to punishment. Much of this ‘binge law-making’ as Private Eye dubbed it, is so complex that judges have despaired at discovering its meaning.’ For example, The Law Commission reported that since 1997 more than 3000 criminal offences have come onto the statute book. Halsbury’s Statutes of England and Wales has four volumes devoted to criminal law that are still currently in force. Volume I cover the offences created in the 637 years between 1351 and 1988 and is 1382 pages long. Volumes 2 to 4 cover the offences created in the 19 years between 1988 and 2008 which are 3476 pages long.82
Even if it is accepted that the doctrine of strict liability has the potential to further the goal of water pollution prevention by criticising past wrongdoing and condemning future contraventions, critics may argue the deterrent element of strict liability is over emphasised and that there are other mechanisms within the English legal system that can effectively deter and prevent water pollution. Criminal punishment is one such example.
Punishment as a deterrent to future wrongdoing is an old statement that dates back to Plato’s laws: ‘punishment is not retribution for the past, for what has been done cannot be undone; it is imposed for the sake of the future and to secure that both the person punished and those who see punishment may either learn to detest the crime utterly or at any rate to abate much of their older behaviour’.83 This theory is both, purposive in character because punishment is justified by reference to the end to be achieved and forward looking because the consequence will emerge once the punishment has been imposed. Certainly, punishment as a deterrent has been acknowledged by many commentators who provide good grounds to believe that it is the threat of punishment
82 C. Wells and O. Quick, Restructuring Criminal Law (4th edition, CUP 2012) 19. 83 See M. P. Golding, Philosophy of Law (Prentice Hall 1975) 73.
124 and not strict liability that can deter individuals and businesses from preventing water discharges. For example, Von Hirsch said that ‘punishing someone conveys in a dramatic fashion that his conduct was wrong and that he is blameworthy for having committed it’.84 Feinberg described punishment as a ‘conventional device’ to express ‘resentment and indignation, and of judgements of disapproval and reprobation’ on the part of the punishing authority or of those in whose name the punishment in imposed.85 Judicially, Lord Denning suggested how it is a mistake to think that the objects of punishment is deterrence, reformation, or prevention and nothing else. To maintain respect for the law, the punishment must reflect the revulsion that is felt by the majority of the citizens.86
The two main schools of thought that underpin the punishment rationale are the backward-looking retributivist position (punish the wrongdoer to restore that which has been disturbed by an offence) and the forward looking consequentialist/utilitarian perspective (prevent future wrongdoing using the threat of punishment). Deterrent theories as an example of consequentialist theories believe in the importance of punishment in order to shape communities and create a habit of legal compliance because every time someone is punished for polluting waters the public morality as to the wrongfulness of the activity is strengthened.87 Punishment changes behaviour and achieves desired goals through ‘individual deterrence’ (the experience of punishment are unpleasant enough to deter the offender), ‘general deterrence’ (general threat of punishment deters crime),88 and ‘educative deterrence’ (a person who contemplates committing a crime is deterred by the threat that he or she will suffer some punishment
84 A. Von Hirsch, Doing Justice – The Choice of Punishments (Reports of the Committee for the Study of Incarceration (1976) 45. 85 J. Feinberg: ‘The Expressive Function of Punishment’ (1965) 49 (3) The Monist 397. 86 Royal Commission on Capital Punishment, Minutes of Evidence, Ninth Day, 1 Dec. 1949, 207. 87 Much has been written about punishment and deterrence. See for example: J. Braithwaite and P. Pettit, ‘Not Just Deserts: A Republican Theory of Criminal Justice’ [1990] 46; H.L.A Hart, Prolegomenon to the Principles of Punishment in Punishment and Responsibility: Essays in the Philosophy of Law (2nd Edition, OUP 2008); and Z. Hoskins, ‘Deterrent Punishment and Respects for Persons’ (2011) 8 Ohio State Journal of Criminal Law 369. 88 Bentham was a key proponent of this theory. See J. Bentham, An Introduction to the Principles of Morals and Legislation (Pickering 1823). See also J. Andenaes, ‘The General Preventive Effects of Punishment’ (1966) 114 U. Ps. L. Reviu. 949 and J. Andenaes, ‘General Prevention’ (1952) 43. J. Crim, L., C. & P.S. 176.
125 in the way that others have). While there are some good grounds for believing that the threat of punishment can deter wrongdoing, a standard objection against the deterrence theory is that punishment does not always deter which is evidenced by the rate of recidivism and the fact that the criminal awaiting his or her sentence was not deterred by the prospect of punishment.
While on the subject of punishment rather than strict liability as an instrument of deterrence, it is worth mentioning the argument that weak punishment can undermine the utility of strict liability and conversely, strict liability can arguably cause weak sentencing. The relationship between strict liability and water pollution prevention is difficult to defend if judges impose lenient sanctions to soften the impact of strict liability on environmental offenders generally and water polluters specifically.89 Case law suggests that this had been true as far as the general water pollution offence of ‘causing’ is concerned. For example, Lord Salmon in Alphacell asserted that strict liability offences are deserved of a ‘nominal fine’ and that ‘minor pollution such as the present’ is ‘not criminal in any real sense’.90 In R v Yorkshire Water Services Ltd, the £50,000 and £25,000 fines were reduced to £10,000 and £5,000 respectively because the appellant’s plea had been accepted on the basis of strict liability, and in Milford Haven (2000), the Court of Appeal substantially reduced the fine to £750,000 after a guilty plea and the strict liability element of the general water pollution offence to ‘cause’ was noted.
Lenient sentences could undermine the impact of strict liability on water pollution prevention if they encourage water polluters to adopt a self-interested attitude where they have little or no regard for environmental laws or the notion of criminal environmental responsibility. Business organisations are unlikely to be exact or scrupulous in matters for which they are responsible for if they interpret the imposition of lenient penalties as lacking a ‘definite expression’ of the hatred that the wrongdoing
89 S.S Nemerson, ‘Criminal Liability Without Fault: A Philosophical Perspective’ (1975) 75 Columbia Law Review 1517. 90 [1972] AC 824 (Lord Salmon).
126 has attracted.91 Sentencing leniency undermines punishment as a ‘conventional device for the expression of attitudes and resentment and indignation, and of judgements of disapproval and reprobation, on the part of either of the punishing authority himself or of those ‘in whose name’ the punishment is inflicted’. But while lenient penalties can undermine the goal of water pollution prevention, there are several possible explanations for why judges may choose this sentencing option.92
The imposition of low penalties for those that ‘cause’ water pollution is broadly in keeping with the 19th Century strict criminal law case of R v Woodrow.93 Evidence suggested that Woodrow had purchased tobacco believing it to be pure and could not reasonably have known that it was adulterated before the purchase. The justice of the peace and the Court of Quarter sessions dismissed the prosecution but an appeal to the Court of Exchequer reversed the decision even though the court agreed that a mitigated penalty was appropriate, notwithstanding the fact that the statute prescribed a larger penalty. Another reason for the imposition of lenient penalties relates to the idea of ‘overkill’, acknowledged by the Court of Appeal in the water pollution case of Milford Haven that a fine must recognise ‘the seriousness of such disasters and the importance of ensuring the highest levels of vigilance but it should not ‘be such as to cripple the Port Authority’s business and blight the economy’.94 Judges may also find it hard to impose tougher penalties when they come face-to-face with the defendant, particularly if the defendant is deemed to be less blameworthy because they did not commit the crime intentionally and/or took all reasonable precautions.95 Finally, judges may be of the view that strict liability offenders deserve lenient penalties because the doctrine is inconsistent with the utilitarian and retributivist theories of punishment, especially if a defendant has been misled into committing an unlawful act. Under the retributivist theory, individuals should only be criminally liable for blameworthy acts. The doctrine of strict liability violates the utilitarian theories of criminal punishment because an
91 See J.F. Stephen, A History of the Criminal Law of England (MacMillan 1983) 81. 92 See Askey v Golden White (1948) 2 All ER 35. 93 (1846) 15 M. & W. 404 (Exch.1846). 94 [2000] JPL 943. 95 A. P. Simester, ‘Is Strict Liability Always Wrong?’ In A. P. Simester (ed) Appraising Strict Liability (OUP 2005) 34.
127 individual who has no basis for believing that he or she is engaging in unlawful conduct will not be deterred from engaging in that behaviour.96 Packer recognised this argument. To punish conduct irrespective of the state of mind at the time of committing the offence is ‘inefficacious’ and ‘unjust’. Inefficacious because conduct without an awareness of the factors that render it criminal does not mark the actor as one who needs to be subject to punishment in order to deter him or others from behaving similarly in the future, nor does it single him or her out as a socially dangerous individual who needs to be incapacitated or reformed. ‘Unjust’ because the defendant is subjected to the stigma of criminal conviction without being morally blameworthy.97
The argument that judges may impose lenient sanctions on environmental defendants in order to soften the impact of strict liability is now weakened by the new Environmental Offences Definitive Guideline, 2014. It is much harder for judges to impose lenient environmental fines - and hence use fines as a way of softening the impact of strict liability - because the environmental sentencing guidelines equips judges with a uniform framework of guidelines that involves a series of steps, principles and objectives for setting environmental penalties. Fines must be proportionate to the defendant’s financial means and have a real economic impact in order to bring home to management and shareholders the need for regulatory compliance.
One part of the meaning of justice is that every person should be given his due but punishment is never due to the person who does not deserve punishment, and that justice involves like cases being treated alike in that a person who intentionally performs a prohibited act and one who does not are, in justice, treated differently.98 Strict liability is unjust because it treats both alike. Bringing wrongdoers to justice means condemning and stigmatising people and holding them up in disgrace but it also makes the criminal justice system contradict itself because if the law purports to condemn persons as being
96 Above n. 58 at 401. 97 See H.L. Packer, ‘Mens Rea and the Supreme Court’ (1962) Supreme Court Review 107, 109. 98 See The Law Reform Commission of Canada (Criminal Law: The Meaning of Guilt-Strict Liability, Working Paper No. 2, 1974. Reproduced with the permission of the Minister of Public Works and Government Services Canada (2006) 15.
128 in the wrong and deserving punishment, it is illogical to then punish those that are not deemed to be in the wrong and not deserved of punishment.99
In view of the limitations of strict liability, particularly the argument that strict liability punishes the innocent, it is not surprising that alternatives to the doctrine have been suggested. For example, Levenson advocated a good faith defence to crimes of strict liability because this would reinsert the issue of mens rea in certain strict criminal liability cases (where, for example,) the defendants seemingly acted in the good faith belief that there was nothing wrong or risky about their conduct. In limited cases, defendants could try and prove beyond reasonable doubt that they operated under an honest and reasonable mistake of fact, that they took positive steps to comply with the law but were nevertheless unsuccessful in their efforts. Thus, the good faith defence would reintroduce mens rea, not as an element that the prosecution must prove for conviction, but as an element a defendant must prove for acquittal. Levenson acknowledges, however, that supporters of strict liability may be nervous that good faith defences will transform all strict liability trials into disputes about a defendant’s intention. Limitations on the defence, Levenson further argues, would minimise this concern. The good faith defence would impose a heavy burden of proof – beyond reasonable doubt – to ensure that those committing the prohibited acts will be punished. The defence would also be available for strict liability offences punishable by fines only.100
There is a strong argument for saying that where the presumption of mens rea is rebutted, liability should not be strict. It should instead look to see whether a defendant was negligent. One way of achieving this is by including ‘due diligence’ defences. Indeed, the Law Commission has reviewed the use of due diligence defences and the various forms that they take; the most general ones are based on whether the defendant had taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence.101 Examples of statutory due diligence defences can be found in section
99 ibid. 100 Above n. 58 at 405. 101 LCCP 195, Paragraph 6.28.
129
24 of the Trade Descriptions Act 1968 and more recently, section 7 of the Bribery Act 2010. Canada utilises the ‘due diligence’ defence as an alternative to strict liability for many charges under occupational health and safety laws. Criminal convictions typically require authorities to prove beyond reasonable doubt that the accused committed the physical act and had the mental element for the offence, but the accused can avoid criminal conviction if it can be proved that it took all reasonable care that a reasonable person would have taken in the circumstances (‘due diligence’). ‘Reasonable care’ is a variable standard that depends on the particular circumstances of each case such as the gravity of the potential harm, the alternative available to the accused, the likelihood of harm, the degree of knowledge or skill expected of the accused, and the extent to which matters are beyond the control of the accused.102 Due diligence within the health and safety context of Canada echoes Lord Reid’s assertion in R v Warner that a possible alternative to the stark contrast and choice between a mens rea and strict liability offence would be for Parliament to transfer ‘the onus of proof’ for mens rea to the accused so that once the necessary facts are proved, he or she must convince the jury that on a balance of probabilities he or she is innocent of any criminal intention.103 The due diligence defence should encourage legal compliance by creating a general obligation and shared responsibility that places specific duties on directors, managers, supervisors and individual workers such as adherence to policies and maintenance and inspection of equipment. There is huge potential to prevent wrongdoing (and hence promote the goal of water pollution prevention) if Fontaine and LaBoissonniere are correct in suggesting that the due diligence defence requires that the following steps are met; commitment to a safety culture; awareness of all legal duties and practices; compliance with applicable laws; proactivity by taking steps to foresee risks; and making detailed written records of all relevant activities such as inspections and audits.
102 D. Fontaine and L. La Boissonniere at McInnes Cooper, ‘The Legal Defence of Due Diligence: Top 5 FAQs’
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This work has highlighted some arguments for and against the doctrine of strict liability to promote the goal of water pollution prevention. The debate surrounding strict liability remains unresolved and is likely to remain so long as it is based on the (questionable) assumption that the existing fault-based principles of criminal law avoids penalising the innocent. Overall, this thesis has advocated a positive link between strict liability and internal coherence. The doctrine provides one of the most direct ways by which the court can relay the message of water pollution prevention first advocated by the 1876 legislature. It shows little judicial legal sympathy towards the water polluter and offers much the potential to encourage preventive practice because in punishing the defendant water polluter they courts are seemingly echoing the message of condemnation generally advocated with the realms of criminal and environmental law.
This Chapter turns to the final issue raised in Alphacell. It argues that the application of the doctrine of vicarious liability helped promote the notion of internal coherence further still. Together, the way the four issues were judicially addressed in Alphacell created important duties and responsibilities for industries, environmental managers, and executives. They must now have greater understanding of their environmental duties and pay greater thought to the way in which business operations ought to have been run if they were to have avoided the entry of matter into controlled waters.
4.3.4 Alphacell Ltd v Woodward [1972]: Vicarious Liability
Vicarious liability in the criminal law takes place when one is held criminally liable for the actions of another. The Environmental Permitting Regulations recognises the doctrine of vicarious liability because it assigns liability to someone who did not directly cause the criminal wrongdoing in question. Regulation 41 states that the officer as well as the body corporate will be guilty of the offence if an offence by a body corporate is proved to have been committed with the consent or connivance of an officer or to be attributable to any neglect on the part of an officer. Alphacell illustrates the application of vicarious liability
131 after Alphacell was held liable for the blockage even though their employee regularly maintained the pumps.
The doctrine of vicarious liability is well established in English law, particularly in relation to strict liability offences that deal with matters such as pollution, food and drugs, and trading standards.104 When companies commit environmental offences in the UK, prosecutions are generally brought against that company as opposed to any individual who might have responsibility within that company.105
Vicarious liability is based on the principles found in two maxims: ‘qui facet alium facit per se’ (a person who puts another in his place to act in his absence is answerable for the wrong committed by the person assigned with the task); and ‘respondent superior’ (superiors must be responsible for the acts of the servant). Ashworth, adopting a public policy stance, argued that vicarious liability is based on ‘pragmatism’.106 Gobert rationalised the doctrine on the proximity of the relationship between the corporation and its individual human actor: ‘an employer is responsible for selecting, training and supervising the employee, not to mention placing the employee in a position where the offence can be committed, should not the employer also be responsible for the employee’s crime?’107 Clearly, these rationales for vicarious liability differ.108 No doubt this is because the doctrine is ‘the creation of many judges who have different ideas of its justification or social policy, or no idea at all’,109 and the lack of ‘precise unanimity
104 S. R. Kyd, T. Elliott and MA Walters, Clarkson and Keating, Criminal Law (9th Edition, Sweet and Maxwell 2017) 365. 105 That said, some statutes declare that any director, manager, secretary or other similar corporate officers can be prosecuted personally if the offence is committed with their consent or connivance or is attributable to their neglect. See section 157 of the Environmental Protection Act 1990, section 217 of the Water Resources Act 1991 and section 331 of the Town and Country Planning Act 1990. ‘Fighting Environmental Crime in the UK < https://efface.eu/sites/default/files/EFFACE_Fighting%20Environmental%20Crime%20in%20the%20UK.p pdf> accessed 28 June 2018. 106 A. Ashworth, Principles of Criminal Law (2nd edition, OUP 1995) 113. See also H. J. Laski, ‘The Basis of Vicarious Liability’ (1916) 26 Yale Law Review 105, 113. 107 J. Gobert, ‘Corporate Criminality: Four Models of Fault’ (1994) 14 Legal Studies 393. 108 P. Morgan, ‘Recasting Vicarious Liability’ (2012) 71(3) Cambridge Law Journal 615, 617. 109 G. Williams, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 Modern Law Review 220, 231.
132 between judges (or between academics) about the rationale, no single accepted truth’.110 This thesis argues that the doctrine of vicarious liability is justified for reasons of condemnation, water pollution prevention, and loss distribution. Each is discussed briefly.
Vicarious liability can deter and prevent water pollution through condemnation. To hold an employer liable for the actions of his or her employer (including those that have tried their utmost best to minimise or avoid the environmental risk) is to arguably suggest that the law defines the wrongdoing as so unacceptable that it matters not that an employer is held criminally liable for the acts of his or her employee. Here, the argument is like that in Section 4.4.3 regarding strict liability and condemnation, that the law is comfortable with the criminally liability of the defendant even though they may not be morally liable. Vicarious liability when combined with strict liability arguably sends out a strong message of condemnation, challenging public beliefs about the impunity of environmental offending from criminal prosecution and punishment.
From the perspective of this thesis, a more compelling justification for vicarious liability is that it promotes water pollution prevention. It incentivises employers to compel his or her employees to take extra care when carrying out their business operations. To ‘make the offence an effective weapon in the defence of environmental protection, a company must by necessary implication be criminally liable for the acts or omissions of its servants or agents during the activities being done for the company’.111 If the law did not recognise the doctrine of vicarious liability the general water pollution offences of ‘causing’ and ‘knowingly permits’ would be rendered nugatory and the parliamentary intention of water pollution prevention would be defeated. There would be little reason to assess or address the environmental risks posed by their business operations,
110 MacDuff J. in JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012) 1 All ER 723. 111 National Rivers Authority v Alfred McAlpine Homes East Limited (1994) Env LR 193, 212 (Morland J.).
133 especially in situations where a considerable sum of money would have to be spent to reduce the risk of future environmental wrongdoing.
The aptness of vicarious liability for the purpose of water pollution prevention is most apparent from section 3.3 of this thesis which explains that the general water pollution offences to ‘cause’ and ‘knowingly permits’ were introduced with business organisations and industries in mind. It would be absurd to then turn a blind eye to the whole idea of holding employers liable for the water pollution caused by their employees. The aptness of vicarious liability for water pollution prevention is further illustrated in Chapters Four and Five when these Chapters explain that many of the water discharges activities that have given rise to a prosecution have primarily been caused by companies and the scale of their operations. For example, in Alphacell, water had escaped from a paper manufacturing plant, in Price v Cromack the entry came from a neighbouring factory, in Express Dairies v Environment Agency the spillage had occurred at a dairy depot,112 and in Empress, Wright and Impress the oils had escaped from a garage. Together, therefore, Chapters Three, Four and Five advocate the necessity rather than the desirability of vicarious liability for dealing with the kind of defendants and situations visualised by the legislature when the water pollution provision was first introduced in 1876.
There lies an economic argument to support the doctrine of vicarious liability. Lacouvara and Nicoli defended the doctrine using the rationale of loss distribution and concept of enterprise liability. Loss distribution represents the idea that the employer defendant is better able to bear the loss caused by the employee because they have in actual practice insured against the loss and the cost is often in effect passed onto the buyers or users of the goods or services provided.113 Enterprise liability is based on the idea that with benefits come burden and those that take the profit of an enterprise should also bear the loss too regardless of whether ‘profit’ is viewed in a financial or non-financial manner. To some extent, enterprise liability represents the idea of social responsibility, that
112 [2003] EWHC 448, [2003] All ER (d) 393. 113 See also D. Brodie, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27 Oxford Journal of Legal Studies 493, 496.
134 anyone who owns and manages business operations must be taken to have accepted responsibility for its use and the legal responsibility that ensues from any environmental contradictions.
While there are many arguments in favour of vicarious liability and its potential to further the goal of water pollution prevention and the concept of internal coherence, the idea that one party is held liable for the actions of another is met by some controversy. It is difficult to find a clear rationale to explain why, in an area of law dictated by fault-based liability, an innocent party should find themselves liable for the fault of another. McIvor urges readers to remember that vicarious liability is a truly exceptional form of liability. The fact that it imposes liability on a no-fault basis makes it imperative that the imposition of vicarious liability relies on very strong justifications.114 Vicarious liability has also been accused of being under-inclusive (because it is activated through the criminal activity of another individual) and over-inclusive (because corporate liability follows even in the absence of individual fault).115 It also seems illogical for the courts and/or the legislature to impose criminal liability for the acts of another when the foundation of the criminal law is based on the idea that a person should only be made liable for his or her own wrongdoing. It does not appear justifiable to hold a company liable for the actions of an employee who decides to breach company rules and commit an environmental crime in cases where a company has adopted clear policies and practices to avert environmental wrongdoing, the majority of their employees have not broken the law, and/or the company has taken reasonable or even exemplary steps to prevent the criminal wrongdoing from arising.116 With this in mind, it is no surprise that the concept of placing criminal liability on a corporation for the actions of its employees has been described as an ‘excessive weapon in the hands of the government’, ‘a concept repugnant to every instinct of the criminal jurist,117 and ‘an evil necessity’.118 It is also not
114 C. McIvor, ‘The Use and Abuse of the Doctrine of Vicarious Liability’ (2006) 35 (4) Common Law World Review 268, 288. 115 E. Colvin, ‘Corporate Personality and Criminal Liability’ (1995) 6 Criminal Law Forum 1, 8. 116 Above n. 107. 117 F.B. Sayre, ‘Criminal Responsibility for the Acts of Another’ (1930) 43 Harvard Law Review 689, 717. 118 J. Edwards, ‘Mens Rea in Statutory Offences’ (1955) 217 Journal of Criminal law 243.
135 surprising that alternative analysis to the doctrine has been suggested when dealing with corporate criminal liability.
Turning briefly to look at the alternative forms of corporate criminal liability, one suggestion by Weissman et al is that of ‘due diligence’. This takes as its basic aim the enhanced role of corporate compliance programmes to make sure that such programmes are given a formal status when establishing liability. They represent and acknowledge the efforts of the corporation to deter and prevent crime (and other improper behaviour) by creating ‘either an obligation for prosecutors to demonstrate that a given corporation has not taken all reasonable measures to prevent employee crime or, alternatively would make such a showing an affirmative defence to criminal liability’.119 Arguably, the benefits of due diligence for internal coherence are self- policing, preventive practice, and ensuring that employers are not unduly responsible for the rogue irresponsible employee who, despite a corporation’s best effort, still commit crime.
Gobert’s four models in the legal treatment of corporations illustrate how alternative models of criminal liability have been developed to better fit the corporate structure. For this thesis, they are briefly outlined below to describe the wider backdrop against which the doctrine of vicarious liability sits within. It also poses the rhetorical question of whether the alternative models to corporate criminal liability could better serve the goal of water pollution prevention.
Gobert’s first model for corporate criminal liability is that of vicarious liability. Alphacell illustrates the application of the doctrine of vicarious liability after the accused was held criminally liable for the water pollution even though their employee had regularly maintained the pumps that led to the blockage. The second identification model,
119 A. Weissman, R. Ziegler, L. McLoughlin and J. McFadden, ‘Reforming Corporate Criminal Liability to Promote Responsible Corporate’ [2008] US Chamber Institute for Legal Reform 17.
136 expounded in Tesco Supermarkets Ltd v Natrass, suggests that corporations are held criminally liable through a direct connection between them and the person responsible for the criminal harm.120 This model, often referred to as the ‘controlling mind theory’, likened the individual(s) with sufficient standing within a company and who could thus be ‘identified’, to a human body. Lord Denning said, it has a brain and nerve centre that controls what it does and hands that hold the tools and respond to directions from the centre.121 Some of the people in the company are servants who are the hands to do the work whereas directors and managers represent the directing mind and will of the company and control what it does. The state of mind of those managers is the state of mind of the company and is treated by law as such.122 There is, however, no clear authority or indication ‘for what criteria are to be employed in determining who falls within the ‘inner circle’ as far as this model of corporate liability is concerned.123 The aggregation model is an extension of the identification model where certain members (such as those that are notably weak or under the influence of others) are excluded: ‘we may say that if an aggregate has collective power with respect to some matter, each member of the aggregate has some individual power with respect to that matter; that is, none are powerless’.124 This model has continued to find favour in some American cases even though aspects of it are problematic because it might lead to the conviction of legal bodies under far-reaching and absurd circumstances.125 As Lederman says, it ‘allows the conviction of a corporate by piecing together the conduct of different agents so as to form the elements of one offence is the result of the over-personification of corporate bodies’.126
120 [1972] AC 153. 121 [1972] AC 153. 122 ibid. 123 Y. Z. Stern, ‘Corporate Criminal Responsibility – Who is the Corporation?’ (1987) 13 Journal of Corporation Law 125, 131. 124 S.R. Hirsctick, ‘Stone, Where The Law Ends: The Social Control of Corporate Behaviour’ [1976] The Loyola of Los Angeles Law Review 976. 125 821 F2d 844 (First Circ). 126 See E. Lederman, ‘Criminal Law, Perpetrator and Corporation: Rethinking A Complex Triangle’ (1985) 76 Journal of Criminal Law and Criminology 285, 288.
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The potential limits of the above models along with the desire to have an equitable premise for corporate liability that extends to all forms of corporate criminal activity have led scholars to propose the fourth model of ‘corporate fault’. The company has liability using the collective will of the company where company is treated as a distinct organic entity whose ‘mind’ is embodied in the policies that it has adopted. When a company ethos or policy leads to a crime, the company should, therefore, be liable in its own right.127 There is an obvious lacuna where the company does not have formalised policies at all or does not have policies relating to the wrongdoing in question but the corporate model ‘takes away the problem associated with judicial attempts ‘to squeeze corporate square pegs into the round holes of criminal law doctrines which were devised with individuals in mind’.128
Overall, the doctrine of vicarious liability for water pollution prevention has been justified for reasons of condemnation, water pollution prevention, and loss distribution. The idea of holding a party liable for the actions of another has, however, been met with some controversy. It is therefore, not surprising that alternative forms of analysis have been suggested in order to better serve the corporate structure such as ‘due diligence’ and Gobert’s identification, aggregation and corporate models of fault.
Alphacell illustrates the significance of vicarious liability to further the goal of water pollution prevention. The doctrine is broad in that it does not discriminate in relation to the size and type of employer; ‘the multinational corporation with thousands of employees whose field-level salesman commits a criminal act is just as criminally responsible as the small corporation whose president and sole stockholder engages in criminal conduct’.129 Alphacell did, however, raise some important questions about the scope of the doctrine. Does vicarious liability apply only to employees who are employed under a contract of employment (as with Alphacell) or does it include causal workers or
127 See J. Gobert, ‘Corporate Criminality: New Crimes for the Times’ [1994] Criminal Law Review 722, 723. 128 ibid, 724. 129 P. A. Lacovava and D.P. Nicoli, ‘Vicarious Criminal Liability of Organization: RICO as an Example in Practice’ (2012) 64 (4) St. John’s Law Review 725.
138 volunteers not employed under a contract of employment? Should employers be held liable if the actions of the employee have little or nothing to do with what they are employed to do but which nevertheless results in the water discharge?
The four key issues that were posed in Alphacell namely, actus reus (commissions and omissions, causation), mens rea (constructive knowledge), strict liability and vicarious liability were approached by the courts in a manner that have combined to produce an internally coherent authority on the subject of ‘causing’ water pollution. The suggestion that the offence to ‘cause’ the entry of matter into controlled waters involves some active operation or chain of operation but not something immediate, together with the idea of criminal environmental liability in the absence of fault using the doctrines of strict and vicarious liability, is in keeping with the legislative intention of pollution prevention as well as the overall ethos of environmental protection that is now a principal feature of an array of domestic, European and International environmental protection laws. Indeed, Alphacell provided an important benchmark for yet more internally coherent interpretations of the offence to ‘cause’ the entry of matter into waters.
Alphacell did more than support the message of water pollution prevention. Alphacell promoted the messages of social responsibility, justice, fairness, polluter pays, and sustainable development by illustrating that a party that creates or undertakes an environmental risk will be held criminally liable for their wrongdoing. They must look beyond the financial wellbeing of the company by taking responsibility for the impact of their business on the environment and precious environmental resources.
There is much to be said about the way in which Alphacell interpreted the general water pollution offence of ‘causing’ the entry of matter into controlled waters. Application of the purposive approach to statutory interpretation meant that law Lords had put themselves in the shoes of the draftsman in order to try and establish the statutory objective or rationale that the legislature had in mind when introducing the general
139 water pollution offences to ‘cause’ and ‘knowingly permits’.130 ‘Viscount Dilhorne stated that the function of the courts is to interpret a statute ‘according to the intent of them that made it’,131 and Lord Salmon similarly opined that if the appeal succeeded ‘many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate’.132
4.4 Concluding Comments
Alphacell demonstrated a clear judicial willingness to attribute ‘causing’ a broad interpretation, make express reference to the legislative purpose of water pollution prevedntion, and support an interpretation that was in keeping with the notion of prevention that was starting to emerge when the case came before the House. Future courts were offered a vital springboard from which to generate and maintain internally coherent interpretations of ‘causing’ through the flexible active operation and chain of operation principle, the manner in which the question of causation was addressed, and the explicit application of the doctrines of strict and vicarious liability. Alphacell also arguably validated wider legal notions that could support the notion of water pollution prevention such as fairness, social responsibility, polluter pays, and sustainable development.133 With all this in mind, it is not surprising that Alphacell was applied and endorsed in jurisdictions such as Scotland and Australia in the disposition of water pollution case law.
Chapter Five now discusses the extent to which the internally coherent attitude of the House in Alphacell was applied in subsequent courts. The question of what is ‘causing’ water discharges has been subject to much judicial consideration and has at times
130 See Lord Simon in Maunsell v Olins [1975] AC 373. 131 [1972] AC 824, 841. 132 [1972] AC 824, 848. 133 For a comprehensive account of the polluter pays principles see M. Munir, ‘History of the Polluter Pays Principle: How Economic Idea Became a Legal Principle?’
140 created inconsistent and unsatisfactory judicial decisions that only sometimes secured internally coherent interpretative outcomes. Alphacell answered many questions about the meaning and scope of the offence to ‘cause’ (and to a lesser extent ‘knowingly permitting’) the entry of matter into waters but, as Chapter Five now shows, it also raised many questions about the scope of the offence.
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CHAPTER FIVE: JUDICIAL INTERPRETATIONS OF ‘CAUSING’ WATER POLLUTION: POST- ALPHACELL v WOODWARD [1972]
5.1 Introduction
There is much to be decided in terms of how the courts should interpret and apply legislation, and whether a behaviour falls within the meaning of any given legislative provision. This is especially the case when a statutory provision has not defined or explained the key legislative terms that is found within a provision.1 Chapter Four discussed the internally coherent case of Alphacell v Woodward with reference to the general water pollution offences of ‘causing’ and ‘knowingly permits’.2 This Chapter deals with the third and fourth phases of immanent critique. It focuses on the offence to ‘cause’ the entry of matter into controlled waters in order to first identify clear examples of how this water pollution offence has been interpreted by judges subsequent to Alphacell. It then compares stages two and three of immanent critique (ideals and reality) in order to assess judicial interpretations of the offence to ‘cause’ the entry of matter into controlled waters against the indicators of internal coherence explained in Chapter One of this thesis.
The case law in this Chapter has fallen within one of the following three key areas of the criminal law namely, actus reus (commission and omission, and causation), strict liability and vicarious liability. This Chapter continues to apply the four indicators of evaluation to determine whether the case law relating to these four key areas of the criminal law could be classed as internally coherent. It will be recalled from Sections 1.4.1 and 4.1 that the four indicators ask whether the general water pollution offence to ‘cause’ the entry of matter into controlled waters was (i) accorded a broad or narrow interpretation, whether judges made express reference to (ii) the legislative goal of water pollution prevention and (iii) the wider environmental goal of pollution prevention and by (iv)
1 Lees argues a clear need for certainty in the interpretation of environmental offences. She describes the current levels of uncertainty as unacceptable. See E. Lees, Interpreting Environmental Offences, The Need for Certainty (Hart Publishing 2015). 2 [1972] AC 824
142 assessing the overall character of each case in order to determine whether the legal interpretation on the whole favoured the defendant water polluter or the goal of water pollution prevention. Evidently, Chapter Five asks the same question as Chapter Four - whether judges have produced internally coherent interpretations of the water pollution offences of ‘causing’, to be distinguished from the question of whether judges were merely concerned with the meaning of and liability of the defendant water pollution. Existing scholarly literature on ’causing’ has not commonly involved a criteria or criterion of evaluation. Chapter Five’s analysis of this water pollution offence employs a criteria of evaluation. This adds to the originality of this thesis. This Chapter can conveniently be undertaken by mirroring the structure deployed in Chapter Four.
Section 5.2 discusses judicial interpretations of the commission and omission (passive/active) distinction with reference to Price v Cromack,3 Wychavon District Council v National Rivers Authority,4 and Attorney General’s Reference (No. 1 of 1994).5 Section 5.3 explores the cases dealing with causation and third party interventions, namely,
6 7 Impress (Worcester) v Rees, National River’s Authority v Wright Engineering Co. Ltd, CPC (UK) Limited v National Rivers Authority,8 National Rivers Authority v Yorkshire Water Services Ltd,9 and Southern Water Authority v Pegrum and Pegrum.10 Section 5.4 discusses the current law on the general water pollution offence of ‘causing’ water discharges with reference to National River’s Authority v Empress Car Company Abertillery Ltd,11 and its application in Express Dairies Ltd v Environment Agency12 and Environment Agency v Brock Plc.13 It is necessary to create a separate section for Empress (even though the case primarily focused on the issue of causation and third party interventions) because this case made a significant contribution to the law of ‘causing’.
3 [1975] 1 WLR 988. 4 [1993] 1 WLR 125. 5 [1995] 1 WLR 599. 6 [1971] 2 All ER 357. 7 [1994] Crim LR 442. 8 [1995] Env LR 131. 9 [1995] 1 AC 444. 10 [1989] 4 All ER 281. 11 [1998] 1 All ER 481. 12 [2004] EWHC 1710, [2005] 1 WLR 222. 13 [1998] JPL 968.
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Section 5.5 discusses the vicarious liability case of National Rivers Authority v Alfred McAlpine Homes East Limited.14 Section 5.6 reflects on the case law discussed in this Chapter in order to assess how judges have responded to the strict liability element of the water pollution offence of ‘causing’. Section 5.7 offers some concluding comments.
5.2 Commissions and Omissions: ‘Active Operation or Chain of Operation’
Chapter Four argued that the active operation or chain of operations requirement in Alphacell was sufficiently vague and flexible to satisfy the indicators of internal coherence. However, in the cases of Price v Cromack and Wychavon District Council v National River’s Authority, the active operation or chain of operations requirement was interpreted in a manner that saw the internal coherence pendulum swing in the opposite direction to that in Alphacell. This produced a mismatch between promise and performance because they suggested that if the offence to ‘cause’ the entry of matter into controlled waters is capable of two interpretations that which is most favourable to the defendant (rather than the goal of water pollution provision) should be taken as correct.
5.2.1 Price v Cromack [1975] and Wychavon District Council v National River’s Authority [1993]
In Price, the defendant was the owner of Oaks Farm, Bagley, Shropshire. He entered into an agreement in 1971 with two manufacturing companies who owned adjoining land. He agreed to allow the companies to discharge their effluent through a sewer on to his land provided that the effluent did not accumulate in such a way that it constituted a nuisance to nearby landowners. In 1973, two lagoons were built on the appellant’s land by a company called Ellesmere Animal Products Ltd (EAP) to better contain the effluent. By this time, the right to discharge the effluent was vested in EAP of which the defendant
14 [1994] Env LR 198.
144 was a director. On the 27th September 1973, Barry Cromack, a District Pollution Prevention Officer, inspected the River Perry running near to the appellant’s land and found that it was seriously polluted with hundreds of dead fish coming down the river. A dissolved oxygen reading showed 2% of saturation when in fact water is unfit for fish to live in until there is a 70 or 80% reading. The escape of the effluent was attributed to two breaches in the walls of the lagoons.
The prosecution at first instance contended that the defendant had ‘caused’ the effluent to enter the stream because the defendant had accumulated the effluent on his land unless the entry of matter into waters was due to an Act of God or a third party. It was no defence to say that the defendant had done his best to prevent the escape. By contrast, the defendant argued that he was not under a strict duty merely because he was a landowner. It was the responsibility of EAP to dispose of the effluent. On the 4th March 1974, the defendant was convicted of ‘causing’ matter to enter a stream on the basis that the effluent came directly from their land without an Act of God or a third- party intervention, and that the defendant had been aware of the risk of the effluent escaping if it was not properly held.15
The appeal to the Divisional Court (Lord Widgery, C.J., Ashworth and Michael Davies, J.J.) was allowed on the basis that the general water pollution offence of ‘causing’ requires proof of some positive act. A mere consent to accept the discharge could not be synonymous with the said offence. Widgery C.J., began by stating that because of the guidance from the House in Alphacell it was necessary to first ask where was the positive act on the part of the defendant which is said to be a or the cause cause of the polluting matter entering the stream? He cited the words of Lord Wilberforce who said that the general water pollution offence to ‘cause’ the entry of matter into waters must involve ‘some active operation or chain of operations’. He also cited Lord Chelsea who said that
15 They were also convicted of causing to flow into water containing fish, liquid and solid matter to such an extent as to cause the water to be poisonous and injurious to fish contrary to section 8 (1) of the Salmon and Freshwater Fisheries Act 1972.
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‘a man cannot be guilty of causing polluting matter to enter a stream unless at the least he does some positive act in the chain of acts and events leading to that result’.16
In Wychavon, information was preferred by the National Rivers Authority against Wychavon District Council (WDC) alleging that on 11th and 12th March 1990 the Council ‘caused’ sewage effluent to enter the River Avon. WDC was the agent for the statutory sewerage undertaker, Severn Trent Water Authority, and was thus under a duty to operate, maintain and repair the sewers in its area. A pollution control officer found a blocked sewer and informed the Council accordingly. But even after two visits from pollution control officers, sewage was still being discharged into the river after the Council had failed to identify, let alone clear the blockage. Later that day, a blocked pipe was found and cleared by Council contractors. The National Rivers Authority alleged that the Council had ‘caused’ sewage effluent to enter the river.
At first instance, the prosecution contended that the water pollution offence of ‘causing’ water discharges did not have to include something physical, and here, the Council had maintained a system leading to the entry of sewage into nearby waters by operating under a statutory duty. Yet on behalf of the Council it was argued that guilt could not be found by being the owner and undertaker, that if anything, the failure to take prompt preventive steps justified a prosecution under the pollution offence of ‘knowingly permits’ rather than ‘causing’. They tried to distinguish Alphacell on the basis that the water polluter in that case had created the problem by their own operation whereas in the present case, the Council had not undertaken anything of the kind. The justices convicted the council of ‘causing’ the water discharge on the basis that there had been a failure on their part to maintain a system that they were under a statutory duty to rectify, and that the council had not taken effective or prompt action on the occasion in question to discover the source of the discharge in order to remedy it. It was further contended that ‘cause’ in the relevant statutory provision did not necessarily require a physical act and could, therefore, include a lack of preventive action as was the case with
16 [1972] AC 824, 834 (Lord Wilberforce).
146 the Council when on the first day they failed to identify and remedy the source of the problem and then on the second day allowed the discharge to continue. The Council appealed.
The question for the High Court was whether in law the council has ‘caused’ the water pollution by their failure to promptly discover the source of the discharge. The Council’s appeal to the Queen’s Bench Division (Watkins L.J. and McGowan L.J.) was successful on the basis that the general water pollution of ‘causing’ required a positive act involving some active operation or operations. The Council had not carried out a positive or deliberate act interfering in any way with the continuous flow of sewage before discovering and clearing the blockage. Watkins L.J. said that the facts found by the justices were not capable of establishing that the council had ‘caused’ the water discharge for there was ‘nothing to point to the performance by the council of either a positive or a deliberate act such as could properly be said to have brought about the flow of sewage effluent into the River Avon’.
The judicial interpretations of the offence of ‘causing’ the entry of matter into controlled waters in Price and Wychavon did not support the notion of internal coherence. There was no evidence of the courts having viewed the case from either the perspective of the legislature or the broader environmental climate that had, as the literature in Section 1.2 suggests, started to gather interest. Nor was there any indication that the offence to ‘cause’ the entry of matter into waters was given an expansive or purposive interpretation in order to promote the core message of water pollution prevention. Price and Wychavon simply concluded that there had been no positive acts on the part of the defendants when in fact the reverse was arguably true. In Price, the positive act was the entering into an arrangement to receive the effluent, that is Price could have concluded like they did in Alphacell that the defendant ‘caused’ the water discharge because the polluting matter had been ‘carried’ by the operation of pumps in a settling tank. Similarly, in Wychavon the Queen’s Bench concluded that there were no positive acts on the part of the accused when arguably the positive act was the council having operated and maintained public sewers on behalf of Severn Trent Water Authority.
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While it is possible that the judges in Price and Wychavon may have been cautious not to stretch the interpretation and application of Alphacell too far (perhaps because the scope of the decision in Alphacell had not hitherto been tested by subsequent courts) both authorities construed the facts of the cases and the offence of ‘causing’ using a rather literal and narrow interpretation despite claiming to apply Alphacell. For example, Watkins L.J. in Wychavon postulated that ‘the meaning attributed to the word ‘cause’ in a number of ‘well known dictionaries’ ‘is “what produces an effect, bringing something about,” “that which produces an effect, that by or through which anything happens.”17 The same was true of Price where Widgery C.J.’s reading of the facts meant that only very specific acts would amount to ‘causing’ such as the accused being seen tipping matter into controlled waters, actively turning on a tap (or doing something of a similar character), and/or physically handing over the effluent to the accused. The literal and narrow interpretation of both the facts of the case and the general water pollution offence of ‘causing’ was most explicit when Widgery C.J. said that if this was a case in which the effluent ‘handed over’ to the defendant at the boundary between the industrialist and his land - and he had then been free to deal with it as he wished – it would be possible to establish the positive act requirement to justify liability for ‘causing’: ‘But of course it did not happen like that. There was no question of the defendant going to the boundary and receiving the effluent to dispose of it. The effluent came on to his land by gravity and found its way into the stream by gravity with no act on his part whatever, if one thinks in terms of a physical act connected with the land or the owner’.18
Price and Wychavon did not support the notion of internal coherence also by the fact that there was a lack of express judicial reference to the message of environmental prevention that the subject of environmental law had by then started to attract attention. In fact, in Wychavon Watkins L.J. arguably trivialised the message of water pollution prevention by drawing attention to Lord Salmon’s words in Alphacell that the
17 [1993] 1 WLR 125, 133 (Watkins L.J.). 18 [1993] 1 WLR 988, 993-994 (Widgery C.J.).
148 said offence to ‘cause’ water discharges is not criminal in any real sense: ‘I think I should add that it was also held in Alphacell that the offence created by section 2(1) was in the nature of a public nuisance and belonged to that class of offences which could not strictly be described as criminal but were rather acts prohibited by statute under a penalty’.19 He reinforced the point by adding that ‘it is a well-known truism that where such a word appears, as here, in a penal section and if it is capable of bearing more than one meaning, the meaning most favourable to the subject must be adopted’.20
A key dissimilarity between Price and Wychavon is in Watkins L.J.’s suggestion in the latter case that there were facts ‘which could amount to knowingly permitting sewage effluent to be discharged into controlled waters, but the council was not charged with that’.21 Indeed, the Council’s failure to identify and remedy the source of the pollution after pollution control officers had brought it to their attention was in keeping with Alphacell’s definition of ‘knowingly permits’, that is, a defendant is guilty of ‘knowingly permits’ if they knew that matter was escaping and had the knowledge and power to do something about it but did not do anything about it.
Whether or not the enforcement officials were correct to bring the case under the general water pollution offence to ‘cause’ rather than ‘knowingly permits’ water discharges are debatable, but three things are much clearer from Wychavon than Price. Firstly, water pollution prosecutions must be brought under the correct limb if the goal of water pollution prevention is not to be undermined. Water polluters are unlikely to appreciate the significance of their wrong doing or the concept of water pollution prevention if they escape liability because they have been charged under the incorrect offence. A likely consequence of this might be single or multiple violations of the law that may continue for days, weeks or months. Secondly, Wychavon suggested that enforcement officials must have a better understanding of the distinction between the
19 [1993] 1 WLR 125, 134 (Watkins L.J.). 20 [1972] AC 824, 834 (Lord Wilberforce). 21 [1993] 1 WLR 125, 133 (Watkins L.J.).
149 water pollution offence of ‘causing’ and ‘knowingly permits’ if they are to assist judges in producing internally coherent interpretative outcomes. Finally, Wychavon asked whether the legislature complicated the water pollution provision by creating a commission omission (passive and active) distinction and whether they ought to have instead created a statutory provision that did not make this distinction, for example: ‘whoever allows poisonous, noxious or polluting matter to enter controlled waters shall be guilty of an offence’.
Many of the things that people do are neither clearly action or inaction but are and will remain on the borderline. This assertion agrees with Husak’s suggestion that ‘Consider coughs, sneezes, burps, yawns, habitual gestures, and a host of equally familiar behaviors. Why insist that each of these events ultimately must be classified as an action or a nonaction? What further evidence do we need to place these events to one side of the line or the other?’22 This assertion agrees with Lord Nicholls’s dissenting judgment in Stovin v Wise. He explained that the distinction between liability for acts and omission is ‘not free from controversy’ and is ‘not clear cut’ because the ‘categorisation may depend on how broadly one looks when deciding whether the omission is ‘pure’ or is part of a larger course of activity set in motion by the defendant’.23 Suppose, therefore, a driver who accidentally drives their car onto someone’s foot. They then realise what they have done but refuse to move their car. Would this constitute an act or an omission?24 Suppose also, a road worker digs a deep hole in the road and then fails to cover it with the consequence that a person falls in the hole and is killed. Has the death been caused by the positive act of digging the hole or the omission to cover the deep hole?25 One answer to these questions is in Katz’s suggestion that the test for distinguishing an act from an omission is by asking ‘if the defendant did not exist, would the harmful outcome in question still have occurred in the way it did?’ For example, in the water pollution case of Environment Agency v Empress Car Co (Abertillery) Ltd, the House of Lords held that
22 D. Husak in ‘The Alleged Act Requirement in Criminal Law’ in J. Deigh and D. Dolinko in The Oxford Handbook of Philosophy of Criminal Law (OUP 2011) 109. 23 [1996] AC 923, 930 (Lord Nicholls). 24 This hypothetical situation is drawn from Fagan v MPC [1969] 1 QB 439. 25 S.R. Kyd, T. Elliott and M.A. Walters, Clarkson and Keating: Criminal Law (9th Edition, Sweet and Maxwell 2017) 142.
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‘maintaining a tank of diesel is doing something’ and therefore, a positive act.26 This is consistent with Katz’s theory in that if the company had not existed the water pollution would not have occurred.
5.2.2 Attorney General’s Reference (No. 1 of 1994) [1995]
Judicial interpretations in Price and Wychavon of the general water pollution offence to ‘cause’ water discharges did not support the notion of internal coherence. The judicial focus and understanding of the meaning of this offence changed in Attorney General’s Reference (No 1) because it established that Price and Wychavon’s interpretations of ‘causing’ had been too narrow particularly in the light of Alphacell’s understanding of the principle of active operation or chain of operations. Attorney General’s Reference defined the active operation requirement far more expansively than Price and Wychavon by declaring that the offence of ‘causing’ can, amongst other things, include the failure to maintain equipment when that failure results in the entry of matter into controlled waters.
In Attorney General’s Reference, there were three respondents. The first respondents, a corporate body, operated a business of collecting and disposing of highly toxic industrial waste in an area where sewage disposal facilities were provided by the second respondents, a sewerage undertaker, whose statutory duties were performed on a day- to-day basis for profit by the third respondents, the local borough council. The second respondents’ sewerage system incorporated sewer pipes leading to a pumping station from where effluent was pumped to a sewerage treatment works for treatment and disposal; if the pumping station failed to operate, the effluent entered an overflow pipe leading directly into a stream, which constituted controlled waters. In 1989 the second respondents were granted a temporary consent to discharge sewage, in an emergency, through the overflow and thence into the stream, on condition that two pumps were
26 [1998] 1 All ER.
151 maintained in the pumping station. At some time in 1991, one of the pumps had been removed, and in early September the other pump was not in operation. A few days later, the first respondents deposited polluting matter into the sewerage system which, because of the failure of the pumping station, entered the overflow pipe and the controlled waters.
The respondents were tried and acquitted on separate counts for ‘causing’ polluting matter to enter controlled waters. The recorder ruled that only one out of the three respondents could be held liable. The second respondents were not liable for the water pollution on the basis that they had no day-to-day control of the operation of the pumping station and that breach of the statutory obligation was not a ‘positive act’. Thereafter, the first and second respondents adduced evidence. The recorder directed the jury by stating that (i) only one respondent could be held liable for ‘causing’ (ii) only ‘positive acts’ can amount to ‘causing’ and that (iii) the failure to maintain a pumping station (even though the lack of maintenance was in breach of the statutory duty) or running a sewerage system, a pumping station and its maintenance could amount to ‘positive acts’ contrary to the water pollution offence to ‘cause’ water discharges. The second and third respondents also escaped liability for ‘causing’ despite the recorder in the Crown Court having referred to Alphacell.
Evidently, all three respondents escaped liability for ‘causing’ even though they had all performed some kind of a positive act. They voluntarily entered into commercial profit- making agreements, contravened licenses and statutory duties, set up their business in a manner that enabled polluting matter to find its way into controlled waters, and operated machinery in an unmaintained state. In view of the arguably narrow interpretation of the water pollution offence of ‘causing’ (despite claiming to apply Alphacell) as well as it being unfair to convict only one out of the three defendants, it is not surprising that the Attorney-General sought the opinion of the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1972. The opinion related to the following three questions of whether (i) the offence to ‘cause’ the entry of matter into
152 waters could be committed by more than one person where one or more persons executed different and separate acts and where each of the separate acts contributed to the matter entering the waters; (ii) the use of a defective system constituted a positive act for the purpose of ‘causing’ water discharges ; and (iii) whether the failure to maintain a pumping system (whether it be negligent or in breach of a statutory duty) could amount to a positive act or a chain of operations. Answering all three questions in the affirmative, it was held that: (i) the offence to ‘cause’ water discharges could be committed by more than one person where one or more persons executed different and separate acts and where each of the separate acts contributed to the matter entering the waters; (ii) the active operation or chain of operations requirement would be satisfied if a sewage or sewerage company set up and owned a system for carrying out its statutory duties and sewage passed through that system and polluted controlled waters; and that (iii) a failure to maintain a pumping system could also be described as a positive act or a chain of operations, that is, a failure to maintain a system implies a failure to act but when positively phrased it amounts to the operation and running of something in an un- maintained state.
Attorney General’s Reference compares favourably to the indicators of internal coherence. It recognised the necessity of attributing the offence of ‘causing’ an expansive interpretation to not only better categorise as illegal the behaviour of those that eventually led to the entry of matter into controlled waters but allow for interpretations of ‘causing’ that support what the legislature had in mind when they first introduced the offence in 1876. The court had as their leading authorities the internally coherent cases of Alphacell and National Rivers Authority v Yorkshire Water Services Ltd (the latter was not available to the recorder) which helped Lord Taylor of Gosforth C.J. interpret and apply the active operation or chain of operations requirement in a manner that was compatible with the legislative goal of water pollution prevention.27 This also meant that the Court of Appeal had now rendered it highly unlikely that cases such as
27 [1995] 1 AC 444. This case not been decided and was thus, unavailable to the recorder at the time of the trial.
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Price and Wychavon would ever be decided the same because they defined the water pollution offence of ‘causing’ positively and framed the use of unmaintained equipment as a positive act: ‘Is a failure to maintain the system a positive act or chain of operations sufficient to constitute causing? The practical answer to the problem posed by this question may depend upon how the question is formulated. . . failure implies an omission. The question could, however, be rephrased to read: is running a system in an unmaintained state sufficient to constitute causing?’
The sharp contrast between Price and Wychavon and Attorney General’s Reference is illustrated in the fact that the courts in the former cases had held that a failure to respond to the water pollution would not constitute a positive act. In Attorney General’s Reference, a failure to maintain a defective pumping system constituted an offence to ‘cause’ water pollution. The expansive interpretation of this water pollution offence is also in the fact that Attorney General’s Reference recognised the notion of joint enterprise, that more than one defendant could ‘cause’ water pollution where there have been different and separate acts.
The Court of Appeal in Attorney General Reference did not, however, support the three points of law using the legislative goal of water pollution prevention or the growing importance that the subject of environmental protection and water pollution prevention had by then attracted. Although Attorney General’s Reference did not fully satisfy all four indicators of internal coherence, the three points of law (especially when taken together) went much further than Price and Wychavon on the issue of internal coherence. There was greater judicial willingness to embrace and promote the spirt of water pollution prevention first established by the 1876 legislature and then forcefully applied by the courts in Alphacell during the early 1970s. There was clear reluctance to reach a decision contrary to the expectations of the legislature as well as the broader environmental landscape that the law of ‘causing’ was positioned in. Certainly, the judicial attitude in Attorney General’s Reference as to the meaning and interpretation of ‘causing’ proved
154 crucial in a world where human and industrial actions was recognised as posing increasingly huge threats to precious environmental resources.
Regarding the issue of causation and third-party interventions, a similar story exists to that provided in this section. Initially, there was much judicial willingness to treat the chain of causation as having been broken by a third party, but the reverse was true in later cases. Ultimately, the simple message that water polluters would be held criminally liable even in the event of a third-party intervention was one of the most important and forceful messages that judges had made in support of the legislative goal of water pollution prevention. They had come to view the subject of water pollution prevention with the level of importance that was given by the court in Alphacell.
5.3 Causation (in Law): Third Party Interventions
Chapter Four explained that a causal connection between conduct and result is not sufficient to make the conduct in question the legally recognised cause of the result. In criminal law, result crimes require a two-staged process to causation. First, the action must be the ‘factual’ cause of the result (but for) and second, the action was the legal cause of the result. The conduct is only the cause of the result where the connection is sufficiently strong to justify the attribution of causal responsibility. In circumstances where there are no complicating factors, factual causation will be sufficient to establish causation but where there are complicating factors, legal causation must also be established.
When establishing legal causation, the accused need not be the sole or even the main cause of the harm. The defendant’s contribution need only be a ‘significant’ and not necessarily a ‘substantial’ cause of the result. This has been illustrated in R v Kennedy
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No2,28 and R v Cheshire.29 The issue of causation, however, becomes confusing when there is more than one possible cause of a result. A defendant may commit an unlawful act or omission which then sets in motion a chain of events leading to the end result. A third party intervenes and compounds the matter. In such circumstances, how can it be established that this intervention has broken the chain of causation and absolved the defendant of all criminal liability? A decision must be made as to the attribution of causal responsibility. Indeed, not in all cases will an intervening act break the chain of causation. There are some situations where the defendant must ‘take his victim as he finds him’. The difficulties of criminal causation have been apparent in five types of third party interventions cases – homicide, drugs supply, medical, interventions by the victims, and of course, pollution.
Unlike tort law, criminal law does not commonly support the idea of multiple independent causation, perhaps for fear of diluting the dramatic effect of the process of trial and punishment. The device which is used to eliminate additional causal actors is the doctrine of novus actus interveniens (new act intervening) which attributes causal responsibility to a later actor to relieve the earlier actor of causal responsibility.30 A defendant will not be held to have caused the result if the event is deemed sufficient to break the chain of causation between the original action and the result in question. Although the original act may still remain the factual cause, the intervening act may supersede it as the legal cause. Many of the principles of causation derive from a famous study of the subject by Hart and Honore, Causation in the Law.31 Honore and Hart have argued that where there is a free, deliberate and informed act or omission of a human being intervening in causal sequence, the initial causal chain will be deemed broken. This statement was cited by the House of Lords with approval in R v Latif.32
28 [2007] UKHL 38. 29 [1991] 1 WLR 844. 30 A novus actus intervenions is typically a third-party intervention but could theoretically be a natural event. 31 H. L. A. Hart and T. Honoré Causation in the Law (OUP 1995) 32 [1996] 1 WLR 104, 115.
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5.3.1 Impress (Worcester) LTD v Rees [1971] and National River’s Authority v Wright Engineering Co. Ltd [1994]
The subject of legal causation and third-party intervention received minimal attention in Alphacell. Lord Wilberforce said that the case was ‘comparatively simple’,33 Lord Salmon said that there was ‘no intervening act of a third party nor was there any act of God to which it could be attributed’, and that ‘there was not even any unusual weather or freak of nature. Autumn is the season of the year in which dead leaves, ferns, pieces of bracken and pieces of brambles may be expected to fall into water’.34 The House did, however, state obiter that ‘it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place. The answer to such questions is one of degree and depends upon a proper attribution of responsibility for the flow of the polluting matter’.35 These words, along with the overall character and essence of the judicial approach to the interpretation of ‘causing’ water discharges suggest that the Court would have held that the causal chain had not been broken by a third party intervention had the issue of third party intervention arisen in the case.
The subject (and complexity) of causation and third-party interventions within the context of water pollution prevention was explored in Impress (Worcester) Ltd v Rees;36 National Rivers Authority v Wright Engineering Co. Ltd;37 CPC (UK) Limited v National Rivers Authority;38 National Rivers Authority v Yorkshire Water Services Ltd;39 and Southern Water Authority v Pegrum and Pegrum.40 This section discusses these cases from the perspective of internal coherence. Note that although Impress preceded
33 [1972] AC 824, 834 (Lord Wilberforce). 34 [1972] AC 824, 848 (Lord Salmon). 35 [1972] AC 824, 834 (Lord Wilberforce). 36 [1971] 2 All ER 357. 37 [1994] 4 All ER 281. 38 [1995] Env LR 131. 39 [1995] 1 AC 444. 40 [1989] Crim LR 442.
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Alphacell, Impress is discussed in this Chapter (rather than Chapter Four) because the case sits better within the tapestry of the case law discussion in this thesis.
In Impress, a substantial quantity of oil escaped from a storage tank that was situated on the appellant’s premises into a river. The storage tanks, which had two outlets from which oil could escape and subsequently enter a nearby river, did not have gates or night watchmen. They were visible from the highway too. One outlet of the tank was kept permanently closed but it was through the second that fuel oil had escaped into the nearby river after unauthorised persons opened the valve. The appellants contended that a person cannot be guilty of the water pollution offence to ‘cause’ water discharges unless they consciously perform some act which will (or is likely to) lead to that result. The respondent, however, argued that a person may cause something to happen by negligently failing to take all reasonable precautions. The defendant was convicted of ‘causing’ because they were aware of the second outlet and that the tank ought to have been kept locked at all times. The conviction was quashed on appeal to the Queen’s Bench Division. The leading judgement of Cooke J. asserted that had the justices asked whether the intervening cause was of so powerful a nature that the conduct of the appellants was not a cause at all but was merely part of the surrounding circumstances, they would have found that ‘it was not the conduct of the appellants but the intervening act of the unauthorised person which caused the oil to enter the river’.41
In Wright, the respondent stored heating oil in a 5,000-litre tank. This was fitted by a site gauge, secured by wire, and located next to a water drain leading to controlled waters. The flow of oil into the sight gauge was controlled by a stop cock near the base of the tank, without which an unnecessary turning of the tap would allow oil to enter nearby waters. Before closing the premises for Christmas, the equipment was cleaned, stored and secured. Pliers had been used to tightly wind wire around the sight gauge in order to prevent any accidental spillage. During the Christmas break, a representative of the National Rivers Authority saw that oil had leaked from the premises and eventually
41 [1971] 2 All ER 357, 358.
158 entered controlled waters. The respondent’s site had previously been vandalised although not to the same scale or extent that was experienced on the night in question.
The justices held that the discharge of the oil was attributable to the third-party intervention because the vandalism in question was not reasonably foreseeable as it was out of all proportion to the earlier minor incidents experienced by the defendant company. The National Rivers Authority appealed by way of case stated where the issue before the High Court was whether the foreseeability of the vandalism was a factor that should be considered when deciding whether or not the respondents had ‘caused’ the pollution. The questions for the opinion of the court were whether (i) there was evidence upon which the Magistrate could come to the decision that the type and extent of vandalism was not reasonably foreseeable and (ii) whether despite the relevant statutory provision being a prima facie absolute offence, a person may be acquitted where some form of vandalism was foreseeable but the vandalism by a third party was of a type and extent that was not reasonably foreseeable but against which precaution could have, but had not in fact, been taken. The Queen’s Bench Division stated that foreseeability would be relevant to ‘knowingly permits’ but of less significance to ‘causing’. Foreseeability was one factor that a tribunal might consider in trying to apply common sense to the question of who or what caused the water pollution and that it was open to the justices to find that the vandals had ‘caused’ the escape. The Divisional Court submitted that the justices were entitled to acquit the respondent. There is, however, little to be gleaned from the judgment in Wright because the judges had been succinct in their submissions most probably because they had heard this case immediately after the appeal in the factually similar case of Yorkshire Water.42
Impress and Wright suggested that liability for ‘causing’ water discharges was determined on the individual facts of each case and on an ad hoc assessment of how blameworthy the defendant was. This rendered the law on ‘causing’ and third-party interventions unpredictable. Two general tests that have been used to address the
42 See later.
159 questions of causal responsibility have varied from the ‘powerful act’ and ‘reasonable foresight’ test although they have not made any difference to the issue of internal coherence. In Impress, the court held that the accused was not liable for the offence to ‘cause’ the entry of matter into controlled waters because the intervening cause was of such a powerful nature that the conduct of the appellant was not a cause at all but merely part of the surrounding circumstances. In Wright, the court again held that the accused was not liable for ‘causing’ water pollution not because the intervening event was of such a powerful nature but because the vandalism in question was not reasonably foreseeable as it was out of all proportion to the earlier minor incidents experienced by the defendant company.
Impress and Wright interpreted the water pollution offence of ‘causing’ using a narrow and literal approach. These interpretations of the relevant water pollution offence therefore, made no recourse to the purpose for which the legislative provision was introduced, or the broader environmental principle of prevention against which the subject of water pollution prevention was a part of. The overall character of these cases leaned greatly in favour of the defendant water polluter rather than the goal of water pollution prevention. As such, these cases did not offer (actual and potential) water polluters much incentive to critically reflect upon and assess their business operations in a manner that would help decide what could be done to guard against vandalism and hence water pollution.
Impress was decided before Alphacell. The following words by Lord Wilberforce were, therefore, unavailable to the courts: ‘it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place’.43 Despite the lack of guidance from Alphacell, there was nevertheless sufficient scope for Cooke J. to have pursued an interpretation of ‘causing’ that furthered the goal of water pollution prevention. The appellant’s conduct of visibly placing the tanks near
43 [1972] AC 824, 834 (Lord Wilberforce).
160 the highway, and using gate-free premises, and installing lock-free taps could have been defined as being of such a powerful nature that the conduct of the third party was not a cause at all but merely part of the surrounding circumstances. This line of reasoning was likely to have offered much motivation to business operators to take greater care in the storage and location of their liquids because those that created opportunities for another to allow the entry of matter into controlled waters would not be absolved of criminal environmental liability on the grounds that the chain of causation was broken by a third party.44 As Hart and Honore said, there are many situations where a defendant is liable for providing or not removing the opportunity for another to commit harm or for a natural event to cause it. In these cases, the causal connection between a defendant’s original act and the harm caused is attributable to the defendant.45
Similarly, there was sufficient scope in Wright for the court to have pursued an interpretation of ‘causing’ that would further the goal of water pollution prevention. Wright needed to focus on hindsight rather than foresight by asking whether in hindsight the defendant could have prevented the vandalism and then the entry of matter into controlled waters, not whether the vandalism was foreseeable. Had the court approached the interpretation of the relevant water pollution offence in this manner, they would most likely have found that the accused could have prevented the vandalism that ultimately led to the entry of matter into controlled waters. Alternatively, the question could have been reframed by asking whether there was anything on Wright’s part that ‘caused’ the pollution. Indeed, Wright (director) was frank enough in his cross- examination to admit that ‘with hindsight, he should have been aware of the dangers of oil spillage. With hindsight, he realised the tank was clearly a target and that there was a real danger. He also said he was worried that it was easy to remove the old sight glass (gauge) but said that it had been secured by wire tightly wound around it with pliers’.46 Significantly, in both cases the defendants had no measures in place to prevent such vandalism or restrict the subsequent escape of any fuel leaking from the tap. In contrast, some may argue that the fact that the defendant’s ‘own conduct, rightful or wrongful,
44 This is compatible with the common law rule in Rylands v Fletcher [1868] LR 3 HL 330. 45 Above n. 31 at 195. 46 Above n. 37.
161 provided the background for a subsequent voluntary act by another does not make him responsible for it. What he does may be a but-for-cause of the injurious act, but he did not do it’.47
Impress and Wright did not satisfy any of the indicators of internal coherence. From the perspective of internal coherence, the judicial reasoning in Wright rather than Impress seems particularly disappointing. There was a sufficiently strong legal basis in Wright to satisfy the indicators of internal coherence not only because the guidance in Alphacell had been available to the courts but also because the subject of environmental protection had gained greater political, social and legal attention and importance by then. It was not uncommon to now find judicial utterances in support of the environment - such as that provided by Lord Goff in Cambridge Water v Eastern Countries Leather: the ‘protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind; and public bodies, both national and international, are taking significant steps towards the establishment of legislation which will promote the protection of the environment.’48 Despite this difference between Wright and Impress, these cases can be reconciled because they both agreed that ‘the general rule for the construction of Acts of Parliament is that words are to be read in their popular, natural and ordinary sense, giving them a meaning to their full extent and capacity’.49
In one respect it is not surprising that Impress and Wright did not satisfy any of the indicators of internal coherence given that there are difficulties in identifying strict principles of criminal causation. Causation is a complex legal issue, establishing causation is not a science, and existing precedent was lacking on the issue of third party intervention and water pollution prevention. The complexity posed by matters of causation has repeatedly been acknowledged by judges. For example, in the water pollution case of Empress, Lord Hoffmann explained that ‘it is of course the causal significance of acts of third parties (as in this case) or natural forces that gives rise to
47 G. Williams, ‘Finis for Novus Actus?’ (1989) 48 (3) Cambridge Law Journal 391, 406. 48 [1994] All ER 53, 76. 49 Byles J. in Birks v Allison (1862) 13 C.B. (N.S) 23.
162 almost all the problems about the notion of ‘cause’ and drives judges to take refuge in metaphor or Latin’.50 He reasoned that ‘there may be different answers to questions about causation when attributing responsibility to different people under different rules’ or even ‘when attributing responsibility to different people under the same rule’.51 In Attorney-General of Hong Kong v Tse Hung-lit Lord Bridge explained that ‘questions of causation arise in many different legal contexts and no single theory of causation will provide a ready-made answer to the question whether [the accused’s]action is to be treated as the cause or a cause of some ensuing event’.52 Lord Bingham in Kennedy (No.2) said something similar: ‘causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question happens’.53 The answer could depend on the questions asked. Indeed, these utterances echo the 20th Century words of Lord Shaw in Leyland Shipping Co v Norwich Union Fire Insurance Society that causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but causation is not a chain but a net: ‘At each point influences, forces, events, precedent and simultaneous meet . . . it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause’.54
5.3.2 CPC (UK) Limited v National Rivers Authority [1995], National Rivers Authority v Yorkshire Water Services Ltd [1995], and Southern Water Authority v Pegrum and Pegrum [1989].
Judicial interpretations of the general water pollution offence of ‘causing’ in relation to the issue of third party interventions in CPC (UK) Limited v National Rivers Authority,55 National Rivers Authority v Yorkshire Water Services Ltd 56 and Southern Water Authority v Pegrum and Pegrum57 brought the law closer to the ethos of water pollution prevention
50 1 All ER 481. 51 ibid. 52 [1986] 1 AC 876 (PC). 53 [2007] 3 WLR. 612, 616. 54 [1918] AC 350, 369 (Lord Shaw). 55 [1995] Env LR 131. 56 [1995] 1 AC 444. 57 [1989] Crim LR 442.
163 first established by the 1876 legislature and cogently applied in the early 1970s House of Lords case of Alphacell.
In CPC, the appellant company was convicted on 13th September 1993 following a trial at Plymouth Crown Court before Mr Recorder Miller and a jury on two charges that arose out of a pollution incident in the River Lyd in Devon. The company, owner and operator of a large factory on the banks of the river where dairy products had been manufactured, were charged, with causing polluting matter to enter controlled waters contrary to s 85(1) of the Water Resources Act 1991.
On October 13th, 1992, an accidental spillage of steraspray into controlled waters (equivalent of caustic soda used in the appellant’s production process) led to the death of approximately 1,000 fish. Liquid was carried from storage tanks through plastic UPVC piping running outside the building at roof level. Investigations showed that the fractured piping - because of defective installation - resulted in an estimated 165 gallons of liquid finding its way into a nearby river. Approximately nine months before the appellant had bought or expressed any interest in the factory, the work was carried out in June 1989 by subcontractors, described as experts of high repute in this specialist field. Prior to the purchase of the factory in March 1990, the appellant had instructed a full survey in accordance with the practice and custom of the industry. According to the appellants, therefore, the defect was latent. On the question of whether the appellant had ‘caused’ the polluting liquid to enter the river, the appellant argued that the water pollution was not due to anything that they had done but the fact that the previous owner’s subcontractors (third party) had failed to properly install the pipes. The question for the jury was whether the appellants had ‘caused’ the polluting liquid to enter the river.
The recorder directed the jury by explaining that it is not a defence to show that three years earlier the predecessor’s subcontractor’s fitter had inadequately secured the piping. It was necessary to determine causation - and not fault or blameworthiness - as a matter of fact by asking if the factory was under the defendant’s control that day, if the effluent would have entered the nearby river without the efficient operation of the plant,
164 that without the defendant’s act there would not have been the water pollution, and that it was their operation of their works and their failure to ensure that the pipes were of a sound nature that led to the entry of the liquid into the nearby river. The company appealed to the Court of Appeal (Evans L.J., Popplewell J. and Ebsworth J.) on two questions of law: (i) was the operation of the factory on the day in question a cause (ii) and was ‘cause’ a question of fact and common-sense as decided by the jury?58
Mr Edis for the appellants made a two-fold submission in order to contend that the recorder had failed to put the main issue raised by the defence before the jury. Firstly, it was wrong to direct the jury on the basis that the defective workmanship of the subcontractor was not a defence in law because causation is a question of fact and other possible causes could not, therefore, be disregarded as a matter of law. Secondly, the central issue of fact - the defective workmanship - was not left to the jury as it should have been because the recorder had ruled before closing speeches that the evidence relied upon by the appellants as to the defective workmanship was irrelevant as a defence. Mr Edis submitted that at no stage of the proceedings had any reference been made to the possibility of there being more than one cause of the escape when in fact the summing up should have directed the jury to consider whether the subcontractors rather than the defendants had ‘caused’ the pollution. In rejecting this submission and appeal, Evans L.J. suggested that it was irrelevant that the appellants were not aware of the latent defect. The statute does not require either fault or knowledge and that the jury was correctly directed to concentrate on the question of fact because this came close to re-introducing the concepts of direct and indirect, remote and not-too-remote causes as considered by Lord Wilberforce in Alphacell. In particular, Evans L.J. cited the following two propositions from Alphacell as relevant to the present case: the operation of the factory on the day in question was capable of being a ‘cause’; and that the question of whether the appellants had ‘caused’ the water pollution was one of fact and common- sense to be decided by the jury. Evans L.J. consequently concurred that the recorder had correctly identified the question of fact for the jury to decide, and that, if they were satisfied that the defendants had ‘caused’ the escape, the history of events by their
58 They also appealed against the order to pay prosecution costs.
165 predecessor’s sub-contractors were irrelevant to their guilt as a matter of law.
Yorkshire Water continued the judicial attitude to the issue of third party intervention demonstrated in CPC after iso-octanol was discharged into the sewers and then into the river by an unknown third party. Yorkshire Water owned, and operated sewage treatment works that operated by gravity. The sewage entered through a sewer leading to an inlet chamber, flowed into one of the two primary tanks, treated through filter beds, and then discharged through an outlet pipe into Hunsworth Beck and into the River Spen. This discharge was subject to a discharge consent.59 Yorkshire Water granted several industrial customers the consent to discharge effluent into the sewers. Neither the discharge consent nor the consent granted to third parties permitted the discharge of iso-octanol. During the night of May 13th, 1990, however, iso-octanol was discharged into the sewers and then into the river by an unknown third party. The National Rivers Authority (appellant) prosecuted Yorkshire Water for ‘causing’ the entry of matter into controlled waters. The respondent was convicted at first instance. Their appeal to the Crown Court was allowed. The appellant subsequently appealed against that decision to the Queen’s Bench Division where the issue before the court was whether the Crown Court was correct to find that the respondent had not ‘caused’ the entry of matter into controlled waters.
The appellant argued that causation was fundamentally an issue of fact and that there was a clear causal link between Yorkshire Water and the iso-octonal entering the river because the responsibility for maintaining the disposal system and the design and operation of the works rested with the respondent. The respondent by contrast argued that they could not be guilty of the offence to ‘cause’ the water discharge because there was no positive act on their part such as physically tipping the discharge into the river. The Queen’s Bench Division allowed the appeal, citing Lord Wilberforce in Alphacell that the Act of a third party does not necessarily interrupt the chain of causation and that it was not necessary to comment on the correctness of earlier decisions such as Wychavon
59 Granted by the Secretary of State for the Environment.
166 which turned on their own facts. Yorkshire Water appealed after it was granted leave by the Appeal Committee of the House of Lords (Lord Keith of Kinkel, Lord Jauncey of Tullichettle and Lord Nolan). The Divisional Court certified two points of law to be of public importance, the relevant one here is whether Yorkshire Water should be guilty of the offence to ‘cause’ the entry of discharge into a sewer by an unidentified third party.60
Lord Mackay of Clashfern L.C. giving the only speech, cited Lord Wilberforce in Alphacell. He concluded that Yorkshire Water was guilty of the offence to ‘cause’: ‘I am of opinion that Yorkshire Water Services having set up a system for gathering effluent into their sewers and thence into their sewage works there to be treated, with an arrangement deliberately intended to carry the results of that treatment into controlled waters . . . . does not preclude the conclusion that Yorkshire Water Services caused the resulting poisonous, noxious and polluting matter to enter the controlled waters.’61 Lord Mackay responded to the National Rivers Authority’s submission that the law had taken a wrong turning in Price and Wychavon by insisting on a positive act by the defendant as an essential prerequisite for ‘causing’ the entry of matter into waters’. He stated: ‘I regard these cases as turning on their own facts and applying the law as explained in Alphacell Ltd. v. Woodward [1972] A.C. 824 to the particular circumstances of the cases. I think it is important and in accordance with the exposition given in Alphacell Ltd. v. Woodward that the word ‘cause’ is to be used in its ordinary sense in these provisions and it is not right as a matter of law to add further requirements’.62 Lord Mackay made a further important statement: ‘If the third party had been identified and prosecuted, he surely would have been found to have caused the pollution. Would Yorkshire Water Services then not have caused it? “Causing” surely cannot turn upon whether a more guilty party is brought to book or not. The answer is surely that both Yorkshire Water Services and the third party would have caused the discharge.’63
60 The second point of law was whether the defence provided by the Act was available in relation to a charge brought against a sewerage undertaker. 61 [1994] 3 WLR 1202, 1207. 62 [1995] 1 AC 444, 452. 63 ibid.
167
As with CPC and Yorkshire Water, the court refused to accept that the chain of causation had been broken in Southern Water Authority v Pegrum and Pegrum after polluting matter (pig effluent) found its way into a stream.64 The respondents reared pigs. Effluent produced by the pigs was held initially in tanks and then transferred by gravity into a lagoon constructed for the purpose. The liquid content of the lagoon was emptied for use as manure several times a year and of sediment annually. In the winter of 1987, after heavy rain, a blocked drain resulted in rain water flowing into the lagoon. A fissure developed at the top of one side of the lagoon and polluting liquid escaped, finding its way into a stream and eventually into a river. The magistrates found that the overflow from the lagoon was caused by an act of God - the ingress of rainwater – and that it was unnecessary to consider whether the respondents were negligent either in not inspecting the drain or discovering the overflow promptly enough or in not providing an adequate drain. The magistrates also found that the blocked drain causing the ingress of rainwater was an intervening event breaking the chain of causation. The prosecutor appealed by way of case stated. In allowing the appeal and remitting the case with a direction to convict, the following principles applied: (i) where the defendant conducts some active operation involving the storage, use or creation of material capable of polluting a river should it escape, then if it does escape and pollute, the defendant is liable if he ‘caused’ that escape; (ii) causation is to be decided in a common-sense way; (iii) a defendant may be found to have caused that escape even though he or she did not intend that escape and even though the escape happened without his or her negligence; and (iv) in deciding whether the intervening cause affords a defence the test is whether it was of so powerful a nature that the conduct of the defendant was not a cause at all, but was merely part of the surrounding circumstances.
On the facts of the case, the active operations or positive acts of the respondents were the storage and re-use of the effluent that formed the toxic sediment that polluted the stream. The magistrates erred in finding that the ingress of rainwater was an act of God - this was an operation of natural forces so unpredictable. The quantity of rain could not
64 [1989] Crim LR 442.
168 properly be regarded as an act of God and in any event the ingress of rainwater into the lagoon was the result of the overflow from the blocked drain. In other words, although unpredictable and unforeseeable operation of animate forces could amount to an act of God, there was no factual basis for such a finding in Pegrum.65 Furthermore, the respondents submitted that the blocked drain was an intervening cause and sought to distinguish Alphacell on the basis that in that case the blockage and breakdown was within the system of the ‘active operations’ which led to the creation and storage of the pollutant. In the present case, the drainage system was nothing to do with the system for storing and using the effluent. The court concurred that the submission must fail on a proper understanding of strict liability.
The cases of CPC, Yorkshire Water, and Pegrum were far more in keeping with the indicators of internal coherence than the earlier authorities of Impress and Wright on the issue of third party interventions. For three chief reasons the case of CPC, Yorkshire Water, and Pegrum made it highly unlikely that cases such as Impress, and Wright would ever be decided in the same way. Firstly, these cases collectively widened the meaning of the general water pollution offence to ‘cause’ water discharges to now include liability for latent defects arising from defective workmanship (CPC), entries into waters arising from the actions of unknown third parties (Yorkshire Water) and refusing to accept water ingress through rainwater as being an Act of God. Secondly, CPC, Yorkshire Water and Pegrum emphasised and applied the internally coherent words of Lord Wilberforce in Alphacell that ‘it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place’.66 Finally, these cases established the causal link for the water pollution by directing rather than diverting the courts’ attention to the real issue, namely, the actions of the defendants rather than the third party in bringing about the water pollution. For example, in CPC, the Court of Appeal disregarded the subcontractors as a cause of the pollution by arguing that the latent defect was not relevant in law because the statute does not require fault or knowledge
65 See Carstairs v. Taylor [1871] L.R. 6 Exch. 217. 66 [1972] AC 824, 835 (Lord Wilberforce).
169 to be proved against them. In Yorkshire Water Lord Mackay insisted that it was the accused that had ‘set up a system for gathering effluent into their sewers and thence into their sewerage works there to be treated’,67 and in Pegrum the court held that it was the storage and re-use of the effluent that was the active operations or positive acts of the respondents leading to the entry of the toxic sediment into controlled waters.
On the issue of whether the courts in CPC, Yorkshire Water and Pegrum had made express reference to the legislative goal of water pollution prevention, there were three judicial responses. In CPC, the court remained completely silent on the matter. They gave the offence of ‘causing’ water discharges a broad but literal interpretation that took no account of the rationale or purpose on which the water pollution provision rested. The judges in CPC were, broadly in keeping with the opinions of those such as Lords Simonds68 and Diplock69 rather than Lords Scarman, Nicholls, Steyn and Denning who have generally supported the literal rather than the purposive approach to statutory interpretation. In Yorkshire Water, the concept of legislative intention entered Lord Mackay’s submission but the House did not expressly refer to the goal of water pollution prevention. It was deemed unnecessary ‘to consider the legislative history in reaching a conclusion upon this matter since I regard the result to which I have come as plain upon the face of the Act ... Nothing in the legislative history casts any doubt on this conclusion’.70 In Pegrum, the offence to ‘cause’ water discharges was given a purposive interpretation because it was thought that it would otherwise ‘defeat the object of the legislation if a landowner who chooses to keep on his land matter capable of polluting should it escape is liable for the non-negligent breakdown of the system for dealing with the matter but is not liable for the non-negligent breakdown of another system (in the present case drainage) within his control and utilised for his purpose’.
Evidently, the issue of third party interventions within the context of the water pollution offence to ‘cause’ water discharges has received considerable judicial attention. The
67 [1995] 1 AC 444, 454. 68 Magor and St. Mellons Rural District Council v Newport Corporation [1951] 2 All ER 839. 69 Duport Steel v Sirs [1980] 1 WLR 142. 70 [1995] 1 AC 444, 454.
170 inconsistent judicial responses produced varying implications for internal coherence. CPC, Yorkshire Water and Pegrum rectified this inconsistency and in doing so, they equipped future judges with a much stronger legal basis than that provided in Impress and Wright for furthering the goal of water pollution prevention when disposing of ‘causing’ case law involving third party interventions.
When the House of Lords case of National Rivers Authority v Empress Car Company (Abertillery)71 appeared before the court, the law of ‘causing’ water pollution was surrounded by much interpretative inconsistency in relation to the two issues of omissions/commission and third-party interventions. This made it difficult for the public, the courts, and enforcement officials to establish whether a water pollution incident fell within the meaning of the offence to ‘causing’. The House in Empress did much to address this legal uncertainty, inconsistency, and confusion. It clarified much of what had been overlooked or misunderstood about Alphacell, overruled Impress, and disapproved of Price, Wychavon and Wright. Empress also equipped future courts with a set of guidelines that had as its core the ethos of water pollution prevention. While Empress has been criticised (see later), it is one of the very few cases that has supported the notion of internal coherence within the context of water pollution prevention. It is hoped that the internally coherent judicial attitude in Empress will infiltrate to the realm of the offence of ‘knowingly permits’ to increase the overall value of regulation 12 (1) as a tool for promoting the notion of water quality that has been a part of the legislative agenda since 1876.
5.4 Clarification of the General Water Pollution Offence of ‘Causing’: National Rivers Authority v Empress Car Company (Abertillery) Ltd [1998]
Empress was factually like the earlier cases of Impress and Wright yet the reasoning (and outcome) took a contrasting turn. The appellant company, operators of a garage, installed a tank in their yard to hold diesel oil. To prevent spillage, a bund surrounded the tank, but the appellant company fixed an extension pipe to the tank connecting it to
71 [1998] 1 All ER 481 (Lord Hoffmann).
171 a drum outside the bund in order to extract the diesel. The defendants did not have any measures in place to protect them from vandalism or prevent the escape of any fuel leaking from the tap. The outlet of the tank was fitted with a tap, but not a lock. On 20th March 1995, an unknown person – possibly a ‘malicious intruder, an aggrieved visitor or an upset local person’ because there had been local opposition to the company’s activities - opened the tap to the drum and allowed a large quantity of diesel oil to enter a nearby river. The appellant was charged with the general water pollution offence to ‘cause’ the entry of matter into controlled. The issue before the court was whether the unknown third party had broken the chain of causation.
The justices convicted the appellant. The Crown Court dismissed the appeal against the conviction holding that Empress brought the oil onto the site and placed it in a tank with wholly inadequate withdrawal arrangements. In the present case, the Crown Court found that the escape was caused by the way in which the company had maintained its tank of diesel fuel – maintaining a tank of diesel is doing something. The argument that the company could not be guilty of the offence of ‘causing’ the entry of matter into controlled waters because a stranger had opened the tap failed before the Divisional Court because the failure to take a simple precautionary measure of fitting a suitable lock was a significant cause of the escape even if the third-party interference was a major cause.
5.4.1 The Two Point of Law
The Divisional Court refused leave to appeal but pursuant to section 1(2) of the Administration of Justice Act 1960 certified that a point of law of general public importance was involved in its decision, namely, whether a person could be convicted of an offence under the relevant statutory provision if it was proved that (a) they held and contained polluting matter in such a way that it would not escape unless there was a positive act by themselves or another, and (b) they failed to take reasonable precautions to prevent such an escape occurring by a third party and it was not proved that they took
172 any other actions, resulting in the pollution. The appeal to the House of Lords (Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Hoffmann and Lord Clyde) was dismissed because there was ample evidence on which to find that the appellant had ‘caused’ the water pollution. The House addressed the point of law certified by the Divisional Court as follows.
In answer to the first question of whether a person could be convicted of an offence under the said statutory provision if it was proved that they held and contained polluting matter in such a way that it would not escape unless there was a positive act by themselves or another, Philpot and Goulding for the appellant argued that the cause of the escape was not the keeping of the oil by the appellant but the opening of the tap by the trespasser. The water pollution offence of ‘causing’ requires some positive act on the part of the accused and the mere keeping of potentially polluting matter on land cannot consequently give rise to criminal environmental liability. Pleming and Bailey for the respondent, by contrast, argued that a person who stores substance in a metal tank that has been allowed to corrode over the years so that the substance leaks from the tank and enters controlled waters has ‘caused’ the water pollution. Pleming and Bailey further argued that Price and Wychavon were wrongly decided and should be overruled for the question of what or who has caused a certain event to occur is essentially a practical question of fact to be answered by common sense as stated in Alphacell. Reiterating Alphacell’s interpretation of the offence to ‘cause’ the entry of matter into controlled waters, the House confirmed that the cases of Price and Wychavon had taken a far too restrictive view of the requirement that the defendant must have done something positive. ‘Cause’ does not require that the positive act is the immediate cause of the escape.72 Lord Hoffmann approved of Lord Taylor’s assertion in Attorney General’s Reference that the positive act requirement in Price and Wychavon was unnecessary: ‘I do not see why the justices were not entitled to say that the pollution was caused by
72 [1972] AC 824, 834 (Lord Wilberforce).
173 something which the defendant did. Maintaining lagoons of effluent or operating the municipal sewage system is doing something’.73
In answer to the second question of whether a person could be convicted of the offence to ‘cause’ the entry of matter into controlled waters if it was proved that they failed to take reasonable precautions to prevent such an escape occurring by a third party and it was not proved that they took any other actions resulting in the pollution, the House accepted Pleming and Bailey’s argument for the respondent. Impress was wrongly decided and that the act of a third party does not necessarily interrupt the chain of causation as in Alphacell and Yorkshire Water. The House described Wright as flawed in its approach because foreseeability is an ingredient in the tort of negligence and liability under ‘cause’ is not based on negligence. It is strict. The question, therefore, is not whether the consequence was foreseeable but whether the defendant caused the pollution because people often cause unforeseen events. The House held that it was the appellant company and not the third party that had ‘caused’ the oil to enter the river. This contrasted with Impress and Wright because in these cases the third parties were identified as the ‘cause’ of the water pollution even though all three cases were factually similar.
5.4.2 Hoffmann’s Guidelines
Lord Hoffmann summed up the above points of law by establishing five guiding principles. These guiding principles, particularly when taken together and read as a whole, indicate much potential to promote consistency and predictability in the law, encourage like cases to be treated alike, limit the kind of interpretational confusions encountered by previous courts, and more importantly, promote the message of (water pollution) prevention that is of greater significance within the contexts of criminal law and environmental law.
73 [1998] 1 All ER 481, 486 (Lord Hoffmann).
174
‘(i) It is up to the prosecution to identify what it says the defendant did to cause the pollution; if something is found to suggest that a defendant had caused the pollution, it is then up to the justices to decide whether that was the cause of the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail’.
This guideline requires the prosecution to first establish as accurately as possible the state of events leading to the entry of polluting matter into controlled waters. This guideline is important for ensuring that prosecutions for water discharges are brought under the correct limb otherwise there is a risk that the message of water pollution prevention is undermined as was arguably the case with Wychavon.
‘(ii) The prosecution does not have to prove that the defendant had done something that was the ‘immediate’ cause of the pollution. Maintaining tanks, lagoons or sewage systems full of noxious liquid is doing something, even if the immediate cause of the pollution was lack of maintenance, a natural event or the act of a third party’.
This guideline specifically rejects the reasoning in Price and Wychavon. It also widens the category of circumstances that could amount to the offence to ‘cause’ the entry of matter into controlled waters. It confirms that maintaining tanks, lagoons or sewage systems full of noxious liquid is equivalent to doing something - even if the immediate cause of the pollution was a lack of maintenance, a natural event, or the act of the third party.
‘(iii) When the prosecution has identified something that the defendant did, the justices must decide whether it caused the pollution. They should not be diverted by questions like ‘What was the cause of the pollution?’ or ‘Did something else cause the pollution?’ because to say that something else caused the pollution (like brambles clogging the
175 pumps or vandalism by third parties) was not inconsistent with the defendant having caused it as well’.
This principle urges future courts to dismiss other possible explanations for the entry of matter into waters (such as brambles, clogged pumps, and vandalism) and instead focus on the participation and actions of the defendant in bringing about the water pollution. This guideline should help put into practice Lord Hoffmann’s submission that it is wrong and distracting to ask, ‘What caused the pollution?’ for there may be several correct answers, that is, the only question to be asked is ‘Did the defendant cause the pollution?’ This approach to causation encourages the courts the treat the actions of the defendant rather than the third party as the real cause of the pollution. In doing so, it reinforces Lord Wilberforce’s submission in Alphacell that ‘rather than say that the actions of the appellants were a cause of the pollution I think it more accurate to say that the appellant caused the polluting matter to enter the stream’.74
‘(iv) If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was the former, it would not negative the causal effects of the defendant’s acts, even if it was not foreseeable that it would happen to that defendant or take that particular form. If it could be regarded as something extraordinary, it would be open to the justices to hold that the defendant did not cause the pollution’.
This suggests that cases of third party interventions must be addressed by asking whether the acts and events are ‘normal’ and a ‘familiar fact of life’ or ‘abnormal and extraordinary’. Only the latter would absolve the defendant from criminal environmental liability. This ‘extraordinary’ and ‘ordinary’ distinction is not something new to the law of
74 [1972] AC 824, 835 (Lord Wilberforce).
176
‘causing’ because it echoes Lord Pearson’s suggestion in Alphacell that the vegetation in the pumps was not ‘unusual’.75 Indeed, it would have been impossible for the House to provide an exhaustive list of the situations and circumstances that would amount to ‘ordinary’ or ‘extraordinary’ although Lord Hoffmann offered some clarification by explaining that a terrorist bombing would be ‘extraordinary’ whereas vandalism, leaky pipes or lagoons, or putting unlawful substances into the sewage system would be ordinary.
There is a concern that the vagueness and ambiguity of ‘ordinary’ and ‘extraordinary’ may result in the accused going to unnecessary lengths and expense to avoid a conviction for the offence to ‘cause’ the entry of matter into controlled waters. .76 There is also a further concern that the ‘ordinary’ and ‘extraordinary’ distinction will undermine the legislative goal of water pollution if malicious vandals knowingly resort to more violent or serious forms of sabotage (like punching holes in tanks or smashing locked taps off piping) knowing that such escalations of vandalism levels will still fall within Lord Hoffmann’s dicta of ‘ordinary’ and, thus find the defendant water polluter criminally liable for the environmental contravention. The counter view is that the vagueness and ambiguity surrounding the terms ‘ordinary’ and ‘extraordinary’ should make it considerably harder for water polluters to escape liability if future courts attribute ‘ordinary’ a wide interpretation and ‘extraordinary’ an extremely narrow interpretation. Business operators are more likely to take preventive practice to guard against the risk of vandalism knowing that the courts are unlikely to find that the third party has broken the chain of causation. So, as Ryan warns: ‘carefully guard your potential pollutants against ordinary or usual intervening conduct or occurrences which no matter how rare or unforeseeable in relation to your plant or premises nevertheless might result in your being the cause of pollution and being made criminally liable’.77
75 There was no unusual weather. Autumn is a season in which dead leaves, ferns, and pieces of bramble may be expected to fall into water. 76 See C. Ryan, ‘Unforeseeable but not Unusual: The Validity of the Empress Test’ (1998) 10 (2) Journal of Environmental Law 348, 361. 77 ibid.
177
‘(v) The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in that area’.
The court took the common-sense view that in the statutory context only something extraordinary will break the chain of causation. What or who has caused a certain event to occur is essentially a practical question of fact that can best be answered by ordinary common sense rather than abstract metaphysical theory. Lord Hoffmann indicated that herein lies much scope for judicial discretion when he emphasised that ‘common sense answers to questions of causation will differ according to the purpose for which the question is asked’. Furthermore, ‘not only may there be different answers to questions about causation when attributing responsibility to different people under different rules (in the above example, criminal responsibility of the thief, common sense responsibility of the owner) but there may be different answers when attributing responsibility to different people under the same rule’.
Aspects of the guidelines such as ‘common sense’ answers to questions of causation and the ordinary/extraordinary distinction rely on judicial discretion. Discretion can be valuable in ‘individualizing the application of the law’ but judicial interpretative discretion can also be ‘the cause of inconsistency in decision outcomes’ because like cases may not be treated alike by decision-makers.78 The many ways in which polluting matter may enter controlled waters is so variable and unpredictable that the inescapable element of judicial discretion and choice can still potentially threaten this area of the law. Indeed, interpretational inconsistencies and confusions seen in cases such as Price, Wychavon, Impress and Wright are not excluded or extinguished simply because the case of Empress supports an interpretation in favour of water pollution prevention. With this in mind, it is not surprising that Howarth and McGillivray warn that ‘despite the extensive guidance offered, the question of causation remains a factual matter on which lower courts possess the capacity to reach differing views of the facts’.79 That said, it is hoped that
78 K. Hawkins, Using Legal Decisions in Judicial Discretion (OUP 1995) 15-16. 79 W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (Shaw and Sons 2001) 535.
178
Lord Hoffmann’s emphasis on the need to understand the ‘purpose and scope of the rule’ and have ‘regard to the policy of the Act’ may curtail and steer judicial discretion towards the goal of water pollution prevention. Indeed, Lord Hoffmann took a very wide purposive approach to the interpretation of the offence to ‘cause’ water discharges namely, the nature of the duty imposed by the relevant statutory provision was a question of statutory construction involving the policy of the Act.80
In summary, Hoffmann’s guidelines make an important contribution to help put into practice the legislative goal of water pollution prevention. He tries to ensure that prosecutions for water discharges are brought under the correct limb, widen the category of circumstances that fall within the remit of ‘causing’ by diverting judicial attention to the key question of ‘did the defendant cause the pollution?’), and apply a common sense approach to the crucial distinction between ‘ordinary’ and ‘extraordinary’ as far as cases involving third interventions are concerned. Policy considerations were at work in establishing these guiding principles, namely, the ideal that controlled waters must be protected from the entry of poisonous, noxious and polluting matters. Hoffmann said that the answer to the question of causation cannot be reached without keeping in mind the rationale and purpose for which the legislative provision was introduced. The court intended to make water polluters accountable for their environmental wrongdoings and to warn business operators that the risk of criminal prosecution was now a real threat. In fact, it might even be argued that the House in Empress reasoned backwards because it so desperately wanted the defendant company to be held criminally liable for the water pollution. The House was arguably conscious about the importance of protecting the future state of the water environment (particularly against the background of the rising importance of environmental matters at domestic, European and International level) and therefore, sought to connect the reasoning and decision in Empress in a way that best fit the ideal of preventing the entry of matter into controlled waters.
80 [1998] 1 All ER 481, 489.
179
5.4.3 Free, Deliberate and Informed
From the perspective of internal coherence and water pollution prevention, Empress is commended but when the case is read against the general laws of criminal causation, it can be criticised. Empress stated that a deliberate intervening act will not break the chain of causation unless it is classed as an extraordinary rather than an ordinary event. Under the general principles of the criminal law, the ‘free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.’81 What is ‘free, deliberate, and informed’ can ‘depend on social- perception’, ‘a social-political label being stuck upon it’, and/or on how broad or narrow a judge is prepared to go in defining these vague and elastic words.82 This approach to causation was cited and approved by the House of Lords in R v Latif,83 Kennedy No2,84 and R v Pagett.85 Take for example, in the last of these three cases, the Court of Appeal upheld a conviction for manslaughter after the appellant had shot at armed police in a dark area while using a girl as a shield.86 In deciding whether the officer’s action in shooting at the defendant amounted to a novus actus interveniens sufficient to break the chain of causation between the act of the defendant and the death of the victim, the Court of Appeal held that neither a reasonable act for the purpose of self-preservation nor an act done in the execution of a legal duty could amount to a novus actus interveniens. The officers had acted ‘involuntarily’ in taking reasonable measures for their self-preservation and in their legal duty to apprehend Pagett. There was no suggestion that they had deliberately shot the victim.
The general principle in Pagett, Latif, and Kennedy that the chain of causation will be broken by a ‘free, deliberate, and informed’ intervention does not seem to apply to the
81 See chapter XII in H. L. A. Hart and T. Honoré Causation in the Law (OUP 1985) 326. 82 A. Norrie, Crime, Reason and History (2nd Edition, Butterworths 2001) 140. 83 [1990] 1 WLR 104, 115. 84 [2007] UKHL 38. 85 [1983] 76 App R 279. 86 [1983] Crim LR 394. The girl had been killed by shots fired by the police in self-defence instinctively and without taking aim.
180 realm of water pollution. If we apply the general principle in these criminal law cases to the facts of Empress, the chain of causation should have been broken. Instead, the House held that the chain of causation had not been broken because the third-party vandalism was not ‘extraordinary’. Indeed, the decision in Empress cannot simply be explained by the fact that the House was merely purporting to lay down general rules on causation when construing a statutory provision imposing strict criminal liability on water polluters. The creation of an exception to the general principles on the matter is attributable to public policy concerns over the control of water pollution. Legal liability alone is not enough in itself; some regard must be had for preventing water pollution. This view has received support. Loveless, for example, argued that Empress offered a policy approach to causation in that the court wished to ensure that the company with overall responsibility for hazardous operations was held accountable for pollution.87 Adshead similarly said that the value judgement in pollution cases is to make the polluter pay rather than establish blame and that perhaps, as a reflection of this, the court in Empress ‘deviated from the central principle of outcome responsibility and have taken a different approach to omissions as well as to intervening acts’.88
There is, however, some authority to suggest that the principle in Empress may be one of general application. In R v Finlay it was applied by the Court of Appeal in the context of constructive manslaughter after the victim was injected with heroin and died. The defendant was tried on two counts of manslaughter, one on the basis that he had himself injected the victim, and the second on the basis that he had prepared a syringe and handed it to the victim who had injected herself. The jury could not agree on the first count but convicted the defendant on the second. When rejecting an application to remove the second count from the indictment, the trial judge ruled - relying on Empress Car – that the defendant had produced a situation in which the victim could inject herself, in which her self-injection was entirely foreseeable and in which self-injection could not be regarded as something extraordinary. The Court of Appeal upheld the judge’s analysis and dismissed the appeal. Buxton L.J. held that a drug abuser who
87 See J. Loveless, Criminal Law, Text, Cases and Materials (OUP 2014) 74. 88 J. Adshead, ‘Doing Justice to the Environment’ (2013) 77 Journal of Criminal Law 215, 219.
181 prepared a syringe of heroin for self-injection by a fellow abuser could be regarded as ‘cause’ the injection that proved fatal.89
This, however, appears to have been doubted in Kennedy in which Lord Woolf C.J. preferred to view Empress as dependent on its own context. The case of Kennedy came before the Court of Appeal twice.90 Kennedy had supplied, prepared, and handed the victim a syringe containing heroin for immediate injection. The victim injected himself and later died as a result of ‘inhalation of gastric contents while acutely intoxicated by opiates and alcohol’. Kennedy was convicted of manslaughter in 1997 and supplying a class A drug (heroin) contrary to section 4 (1) of the Misuse of Drugs Acts 1991.91 His first appeal in 1998 was rejected but that decision was widely criticised claiming a voluntary act of self-injection breaks the chain of causation and thus his conviction should have been quashed. Kennedy appealed for a second time in 2004 where the Court of Appeal had to decide between conflicting authorities which had arisen in the meantime. The court declined to overturn his conviction. Lord Woolf C.J. held that Kennedy and the victim had acted ‘in concert’ (as a co-defendant) and thus the conviction was upheld. The House of Lords, in considering an appeal in 2007, finally quashed Kennedy’s conviction.92 They rejected all the previous arguments that had diverted the Court of Appeal away from the only real issue; that the chain of causation will be broken by a third-party intervention which is free, deliberate and informed. Self-injection of a Class A drug - by an informed adult of a sound mind – is an autonomous act.
The Judicial Committee of the House (Lord Bingham, Lord Rodger, Baroness Hale, Lord Carswell and Lord Mance) asserted that the committee ‘would not wish to throw any doubt on the correctness of Empress but that the reasoning in that case cannot be applied to the wholly different context of causing a noxious thing to be administered to
89 [2003] EWCA Crim 3868, [2003] All ER (D) 142. 90 See (2005) 1 WLR 2159. 91 He was sentenced to five and two years’ imprisonment in the first and second counts respectively to run concurrently. 92 [2007] UKHL 38.
182 or taken by another person contrary to section 23 of the 1861 Act’.93 The Judicial Committee of the House confirmed that the Court of Appeal was right not to follow R v Finlay which sought to apply Empress. In R v Finlay, the trial judge ruled, relying on Empress, that the defendant had produced a situation in which the victim could inject herself, in which her self-injection was entirely foreseeable and in which self-injection could not be regarded as something extraordinary: ‘The Court of Appeal upheld the judge’s analysis but it was wrong to do so’.94
Empress is in keeping with the goal of water pollution prevention, but the decision has been heavily criticised. Allen, for example, argued that there was something ‘almost perverse’ about the reasoning that the defendant water polluter should be liable for a result that he did not cause simply because the vandalism by which it was caused was not so extraordinary as to be unforeseeable. The third party action in Empress was not only free, deliberate and informed but malicious too.95 Smith, Hogan and Ormerod describe Empress as an ‘aberrant authority’, and Ormerod and Laird said that in suggesting that the chain of causation would be broken if the actions of the trespassers were extraordinary rather than free, voluntary and informed, his Lordship seems to confuse the principles dealing with natural interventions and those with third party interventions.96
Simester et al, while accepting that the leading judgment given by Lord Hoffmann contains several useful statements, have been particularly harsh in their criticism of Empress. They described the case as ‘profoundly unsatisfactory’, involves ‘bad principle, bad law, bad reasoning’,97 and is fundamentally contrary to the long-standing precept of causation rules in criminal law that ‘a person is responsible for his own autonomous actions and not for those of others’.98 Simester et al based their heavy attack on Empress
93 R v Kennedy – House of Lords – Session 2006-07 47th (2007) UKHL 38 – an appeal from (2005) EWCA Crim 685, Paragraph 16. 94 ibid. 95 M. J. Allen, Criminal Law (OUP 2017) 62. 96 D. Ormerod and K. Laird, Criminal Law (OUP 2018) 73. 97 A. P. Simester, G. R. Sullivan, J. R. Spencer and G. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (4th edition, OUP 2010) 106. 98 ibid.
183 on three key grounds. Firstly, the third-party intervention was free, deliberate, informed, and malicious so prima facie it was a novus actus yet Lord Hoffmann accorded no special status to such interventions and failed to distinguish informed acts by third persons from acts which are uninformed or unfree. Secondly, the main effect of the ‘ordinary’ and ‘extraordinary’ distinction is to confuse interventions by third parties with interventions by natural events which is contrary to both, principle and law. Principle because it is unexplained how the defendant’s lawful storage of the oil on their land had any causal effect. Simester et al give the example of a victim who lawfully parks their car on the street, but another person may come along and vandalise the car. Arguably, the victim has given the person an inadvertent chance to cause the criminal damage, but the parking of the car was not a cause of its damage. If the physical location of the car is treated as cause of the criminal damage, then all other environmental features should also be classed as causes of the damage. The same reason, Simester et al, therefore, argue applies to the storage of the oil in Empress. Simester et al’s third criticism of Empress is that Lord Hoffman placed great weight on the statement attributed to Lord Wilberforce in Alphacell that ‘the deliberate act of third party does not necessarily negative causal connection’ but Lord Wilberforce did not use the word ‘deliberate’. Lord Wilberforce had obiter rejected in his speech the proposition that ‘in every case the act of a third party necessarily interrupts the chain of causation’.99
Even though the decision in Empress has been heavily criticised, subsequent courts dealing with the water pollution offence of ‘causing’ have confirmed the correctness of the decision. Despite their relatively succinct judgments, Environment Agency v Brock (1998)100 and Express Dairies v Environment Agency (2005) solidified the importance of the message of water pollution prevention and environmental protection so strongly advocated by the judicial bodies (and the legislature) in Alphacell and Empress. No longer can defendant business operators readily argue that it was the actions of the third party that had ‘caused’ the water pollution or assume that they can behave as they want as far as the protection of the environment is concerned. Members of the public are now encouraged to have greater awareness of the status of environmental goals and how
99 [1972] AC 824. 100 [1998] JPL 968.
184 these goals are to be realised in actual practice (fitting gates and taps with locks, and storing polluting matter out of sight). Indeed, Since Brock and Express, there have been no further cases that have interpreted the offence of ‘causing’ in any substantive way. Subsequent cases have mainly dealt with the sentencing of such offenders.101
5.4.4 Post Empress: Environment Agency v Brock [1998] (Escape through a Latent Defect: The Hoffmann Approach) and Express Dairies v Environment Agency [2005] (Section 217 of the WRA 1991: Criminal Liabilities of Directors and other Third Parties)
In Brock, a routine visit from a pollution and waste regulation officer alleged that on 2nd December 1996 Brock had ‘caused’ polluting matter (tip leachate) to enter a ditch after a latent fault in a seal caused a leak from a joint in a pipe. The respondents gathered the polluting manner by constructing chimneys and then, from time to time, pumped leachate using a hydraulic pump from the chimneys into a second lagoon. The magistrates, in acquitting Brock on the basis that the leak at the site was neither within their control nor caused by Brock’s negligence, stated three questions for the Queen’s Bench Division ((Roch L.J.; Potts J.). The relevant question for this thesis is whether liability for the offence to ‘cause’ water discharges could arise even in circumstances where the accused had not been aware of the escape through a latent defect. Roch L.J. explained that this issue could be dealt with quite shortly in the light of the then recent decision of the House of Lords in Empress which was unavailable to counsel or the magistrates when this matter was first heard.
The Queen’s Bench Division (swiftly) found that Brock had ‘caused’ the tip leachate to enter the ditch at the Hooton landfill site.102 Roch L.J. stated that pumping leachate through pipes to a man-made ditch was a positive act for the company, and that the first and only question that the justices ought to have asked was whether ‘there a positive act or acts by the respondents?’ for the answer would then have been in the affirmative. The pollutant could not have reached the ditch without the act of pumping; once the
101 See Chapters Six and Seven. 102 Roch L.J. explained that Empress approved of CPC after Evans L.J had said that the unawareness of the defect was irrelevant because the offence does not require either fault or knowledge.
185 pumping stopped so did the entry of pollutant into the ditch. Roch L.J. continued, the justices should have then gone on to consider whether the failure of the rubber seal was a normal fact of life or something extraordinary for the circumstances of the case permitted only one answer, namely, the failure of seals is an ordinary fact of life: ‘When such items are manufactured, then there are times when they are manufactured in a condition which makes them defective. That may not be detectable by the user of the seal. It is no doubt a rare occurrence, but it is an ordinary occurrence in my judgment’.103 Roch L.J. cited Lord Hoffmann’s approval of the Court of Appeal decision in CPC, stating that the justices in the present case should then have considered whether the failure of the rubber seal or gasket was an ordinary fact of life or something extraordinary, to which there would have been one clear answer, namely, the failure of such seals is an ordinary fact of life because there are instances when such items are manufactured defectively.
Brock did not expressly refer to the legislative goal of water pollution prevention when defining the general water pollution offence of ‘causing’ or promoting the wider message of environmental protection that had gained much momentum at national, European and international level. Perhaps, the court considered this unnecessary because the legislative purpose that underpins the water pollution offence ‘causing’ the entry of matter into controlled waters had unequivocally been stated by Lord Hoffmann in the then recent case of Empress. The court did, however, refer to legislative intention when they addressed the question of whether a ditch fell within the meaning of ‘controlled waters’. This suggests that the court was mindful of the concept of internal coherence.
Express Dairies Ltd v Environment Agency developed the meaning of ‘cause’ further still using section 217 (3) of the Water Resources Act 1991.104 Where the commission by any person of an offence under this Act ‘is due to the act or default of some other person, that other person may be charged with and convicted of the offence whether or not proceedings for the offence are taken against the first-mentioned person’.105 The
103 (1998) Env LR 607, 614. 104 [2005] 1 WLR 222. 105 [2005] 1 WLR 223.
186 appellants had dairy depot premises. One of their customers, Ian Pardy, a private contractor, bought milk from the appellants. On 9th January 2003, information was proffered by the Environment Agency against the defendants that, on 21st January 2002 at Express Dairies Depot, Pardy’s Dairies ‘caused’ polluting matter to enter controlled waters contrary to section 85 and that the offence was committed due to the act or default of Express Ltd contrary to section 217 (3) of the same Act. Pardy was transferring cream from a lorry to his transit van (parked as usual in an area served by surface water drains) on the appellant’s premises. The van was parked on a slight slope so that a grundy could easily be rolled forward into position. The appellants had neither assessed the risk occasioned by the customer’s loading and unloading operations nor insisted that they be carried out in a particular way. A grundy collided with a milk crate and toppled over. This resulted in 10 litres of cream escaping into a watercourse and discolouring approximately 150 - 200 metres of waters.
The customer (Pardy’s Dairies) was convicted of ‘causing’ polluting matter to enter controlled waters contrary to section 85. The appellants were convicted of ‘causing’ polluting matter to enter controlled waters contrary to section 217 (3) of the same. The justices made the following key findings: unloading and loading the grundies on a slope and near a land drain was an unsafe practice that Express Dairies had allowed Pardy to undertake; the appellants did not assess the risk occasioned by the customer’s loading or insist on a risk assessment; the chain of causation had not been broken because the series of events was not extraordinary; and that it was important to cast aside issues of foreseeability and negligence because ‘cause’ is a strict liability offence and intent, negligence or recklessness are thus irrelevant.106 The five questions presented for the opinion of the Queen’s Bench Division (Kennedy L.J. and Treacy J.) were reduced to two issues. The relevant issue here is whether the commission of the relevant section of the legislative provision was due to an act or default of the appellants. Kennedy L.J. said that a breach of section 217(3) requires the prosecutor to show that Pardy’s contravention of the said legislative provision was due to an act or default of Express Dairies, for if a
106 The justices convicted the defendants and imposed a fine of £5000 and awarded costs to the prosecutor of over £10,000.
187 landowner is going to permit an operation on their land, giving rise to a risk of pollution, then in order not to fall foul of ‘cause’, they must carry out and respond to the risk assessment. Otherwise, it will almost impossible for them to claim that the offence committed by those using their land was not due to one or more of his acts or defaults. On this analysis, Kennedy L.J. concluded that the above question should not be answered in the affirmative and dismissed the appeal.
More recently, in Natural England v Day the Court of Appeal declined the opportunity to address the continued validity of the approach in Empress after the defendant challenged his conviction under the Wildlife and Countryside Act 1981 (Section 28 (1) and 28P (1) and against the imposition of a £450,000 fine) for causing someone in his employment to destroy woodland.107 The defendant argued that when considering the issue of causation, the judge had applied the principles in Empress when he should have applied the much narrower test set out in R v Hughes.108 The court noted that there were strong arguments for following the approach in Empress if the issue ever arose on the facts of any properly developed case.
Evidently, Empress is an important illustration of the significance of the courts in realising the wishes of the legislature in protecting water quality. The decision in Empress has received harsh criticism especially when read in the light of Pagett, Latif, and Kennedy (no 2). The real value of the decision in Empress will only be seen in the long-term, particularly, through the frequency with which appeals from decisions of magistrates are heard in the future, the outcome of those appeals, and when successful appeals for error of law become a rare occurrence.109 It is indeed remarkable how many cases on the subject of ‘causing’ water discharges there have been in which justices have tried to apply common sense and found themselves reversed by the Divisional Court for error of law. Hoffmann’s guidelines should reduce the number of instances where decisions of the lower courts are reversed by the Divisional Court. Indeed, having clarified the current
107 [2014] EWCA Crim 2683. 108 [2013] UKSC 56. 109 N. Parpworth, ‘Causing Water Pollution: Lord Hoffmann’s Guidance to Magistrates Applied’ (1998) 162 Justice of the Peace, 439.
188 law on the subject of ‘causing’ the entry of matter into controlled waters involving issues of commission/omission and third-party interventions, this Chapter turns to the issues of vicarious and strict liability.
5.5 Vicarious liability: National Rivers Authority v Alfred McAlpine Homes East Limited [1994]
Alfred McAlpine Homes (respondent) were building houses on a residential site at Goldwell Springs, East Malling. Cement entered and polluted a nearby stream (and killed fish life) during the construction of a water feature. On May 21st, 1992, a water quality engineer employed by the National Rivers Authority (Southern Region) (appellant) inspected the stream and found that it was polluted. The respondent’s site agent and site manager both accepted responsibility for the water pollution. The respondent was consequently charged with the general water pollution offence of ‘causing’ wet cement to enter controlled waters. The justices held that there was no case to answer and dismissed the information. While the relevant statutory provided created an offence of strict liability, the authority had failed to show that the company itself was liable because neither the site agent nor the site manager were of sufficiently senior standing within the company to enable them to class as persons whose acts were the acts of the company. The justices had applied Tesco Supermarkets Ltd v Nattrass (1972). The National Rivers Authority appealed.
The company contended that it was not criminally liable for the water pollution because neither the site agent nor the site manager could be regarded as exercising the controlling mind and will of the company and since the relevant statutory provision could not be construed as imposing vicarious liability on companies. The issue before the Queen’s Bench Division (Simon Brown L.J., Morland J.) was whether the justices were correct to conclude that the offence of ‘causing’ the entry of matter into water discharges could only be committed by the company if the offence was commissioned by a person exercising the ‘controlling mind and will’ of the company such as the director, manager, secretary or some similar officer of the company. The court held that ‘It can be
189 strongly argued that the respondents by their activities directly caused the flow of polluting matter into the stream. It is difficult to see in principle why it should matter whether those activities are essentially mechanical by their plant or essentially manual by their servants or agents. The forbidden result is the same’.110 The question to be asked in all cases where a company is prosecuted under the relevant water pollution provision was whether as a matter of common sense the company by some active operation or chain of operations caused the water pollution.111
The overall character and tone of Alfred McAlpine was in line with the indicators of internal coherence. It brought the legislature and the courts in greater harmony with the goal of water pollution prevention. The judges had made best use of their interpretative opportunity. They defined the offence to ‘cause’ the entry of matter into controlled waters in a manner that furthered the goal of water pollution prevention by immediately rejecting the arguments presented by the defendant company, applied the message of water quality strongly advocated in Alphacell, and justified the application of the doctrine of vicarious liability using the legislative purpose of water pollution prevention.
There is much evidence of Brown L.J. and Morland J. having followed Alphacell’s message of protecting waters from pollution and industrial activity. Insisting that ‘this court is now in any event bound by the authoritative approach to s 85 of the 1991 Act determined by the House of Lords in Alphacell Ltd v Woodward,’ and concluding ‘that the case falls four- square within the Alphacell principle’,112 Brown L.J. cited the words of Lords Wilberforce and Salmon in Alphacell while stating that there were ‘helpful passages to be found in all five speeches’. The offence to ‘cause’ water discharges is to be given a common-sense interpretation and that what or who has ‘caused’ a certain event is a practical question of fact answered by ordinary common sense rather than by abstract metaphysical theory.113 In answer to whether the present case is properly distinguishable from Alphacell, he replied ‘ I believe not’ for there was ‘no difference in principle between the
110 [1994] 4 All ER 286, 298 (Morland J.). 111 ibid, 297. 112 ibid, 294 (Morland J.). 113 ibid, 296 (Brown L.J.).
190 design and maintenance of a storage tank for pollutants (Alphacell), and the carrying on of building operations involving the use of pollutants (here, cement to construct a water feature), each occurring on land adjacent to controlled waters. Either system, if ineffectively devised or operated, can result equally in the escape of polluting material into the adjacent stream’.114
Mrs Kennedy McGregor advanced several arguments on behalf of the respondent. They fundamentally centred on the submission that Alphacell could be distinguished from the present case and that the court should not impose vicarious liability. Her arguments were immediately rejected by Brown L.J: ‘To my mind the difficulty with this whole elaborate argument is that it breaks down at least as early as stage (2). . . I for my part see Alphacell as an illustration of vicarious liability rather than a case where the House of Lords concluded that those representing the directing mind and will of the company had themselves personally caused the polluting matter to escape’.115 Indeed, Brown L.J. noted that rather oddly Alphacell was not placed before the justices in the present case but instead the House of Lord’s decision in Tesco which dealt with a very different situation: ‘What was there in question was not whether the company was liable under an offence section, but rather whether it was entitled to invoke a defence section. What was in issue was whether the manager who was most directly at fault was ‘another person’ (i.e. a person other than the company itself) within the meaning of the defence section (s 24(1)(a) of the 1968 Act). The answer was Yes, because he was not of sufficient standing to be identified with the company itself as being or having its directing mind and will’.116
It was argued on behalf of the company by Mrs Kennedy MacGregor that vicarious liability should not be applied because criminal liability could only be imposed upon a corporate body either by holding the corporate body vicariously liable for the act of its servants or agents, or by identifying the corporate body with individuals held to
114 ibid, 294 (Morland J.). 115 ibid, 292 (Morland J.). 116 ibid, 291 (Brown LJ).
191 represent its controlling mind and will. Furthermore, if Parliament had intended not only the actual polluter to be criminally liable but also his principal or the company, Parliament would have specifically said so by using the words ‘whether by himself, his servant or agent’. Mrs Kennedy-McGregor forcefully argued that the courts should avoid the harsh combination of strict and vicarious responsibilities where the company could easily be criminally liable for something it did not do or knew nothing about and may have forbidden had they known. Indeed, the court insisted that a company should be held criminally liable for the offence to ‘cause’ water discharges resulting from the acts or omissions of its employees acting within the course and scope of their employment irrespective of whether they could be said to be exercising the controlling mind and will of the company. In the absence of vicarious liability, the filthiness of the rivers would increase because in almost all cases the act or omission leading to the water pollution ‘will be that of a person such as a workman, fitter or plant operative in a fairly low position in the hierarchy of the industrial, agricultural or commercial concern’.117 The court added that there should be no reason why environmental responsibility should not be placed on the principal - as opposed to servants or agents – not only because the object of the pollution provision is to keep streams free from pollution but ‘as a matter of policy’ but because the principals ‘are best placed to ensure that streams are not polluted during their activities by their servants or agents. They can do this by training, discipline, supervision and the highest standard of maintenance of plant’.118 As Morland J. said, ‘to make the offence an effective weapon in the defence of environmental protection, a company must by necessary implication be criminally liable for the acts or omissions of its servants or agents during activities being done for the company. I do not find that this offends our concept of a just and fair criminal legal system, having regard to the magnitude of environmental pollution, even though no due diligence defence was provided for’.119
117 ibid, 298 (Brown L.J). 118 ibid. 119 ibid, 300 (Morland J.).
192
The broad interpretation of the general water pollution to ‘cause’ the entry of matter into controlled waters in Alfred McAlpine was underpinned by the purposive approach to statutory interpretation. Morland J. argued that despite the skill and cogency of Mrs Kennedy-McGregor’s arguments and despite her attempt to distinguish Alphacell on the basis of the inherent design fault in the pumping system (and that thus the causative act of pollution was by the controlling mind and will of the company) ‘her arguments are fallacious if the relevant words of s 85(1) of the 1991 Act are given a purposive interpretation’.120 More importantly, this assertion was underpinned by a general awareness of the longer term implications of polluting waters and hence the need of keep waters free from pollution. As Morland J. added: ‘The object of the relevant words of s 85(1) and the crime created thereby is the keeping of streams free from pollution for the benefit of mankind generally and the world’s flora and fauna. Most significantly deleterious acts of pollution will arise out of industrial, agricultural or commercial activities. The damage occasioned may take years to repair and often at a cost running into thousands or millions of pounds’.
Alfred McAlpine is one of the very few cases relating to the offence of ‘causing’ water discharges which satisfied all the indicators of internal coherence. It brought the legislature and the courts as close as possible to the goal of water pollution prevention using the doctrine of vicarious liability. The court was very keen to not only find the employers liable for ‘causing’ water discharges but to also send out a strong warning to those engaged in business operations who are likely to pollute the environment. The policy aim of the decision in Alfred McAlpine is to reduce the number of water discharges by encouraging employers to take greater care in the recruitment, training, and supervision of their employees. It resonates the words of those such as Sir Henry James who in 1876 urged the necessity of recognising that streams were being poisoned by ‘the great increase in manufacturing and mining activities along the banks of rivers’.121
120 ibid, 298 (Morland J.). 121 Sir Henry James, HC Deb 4 August 1876 vol 231, cols 556-61, 558.
193
The following section considers the extent to which the courts used and applied the doctrine of strict liability. It argues that after Alphacell (bar Wright), the courts continued to apply the message of strict liability when interpreting the general water pollution offence of ‘causing’ the entry of matter into controlled waters.122 The courts did not dilute or interfere with the idea that it is not necessary for the prosecution to prove knowledge, foreseeability, negligence or intention when dealing with the offence to ‘cause’ the entry of matter into controlled waters. The prosecution refused to make allowances for accidental, reckless, negligent or intentional entries into controlled waters. They tried to prove that the water discharge resulted from the incident in question (causation).
5.6 Strict Liability: A Strict Approach
It will be recalled from Chapter Four that the classic statement on the strict liability of ‘cause’ is by Lord Salmon in Alphacell. It was held that a conviction could not be secured ‘unless the prosecution could discharge the often-impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred. Many rivers which were filthy would become filthier still and many rivers which were clean would lose their cleanliness’.123 The judgments from the many cases discussed in this Chapter clearly show that the courts have consistently applied the fault free element of the water pollution offence of ‘causing’ first confirmed in Alphacell.
In CPC (UK) Limited v National Rivers Authority, the piping leaked because it had been poorly installed by the reputable subcontractor prior to the defendants purchasing the factory. Yet the Court of Appeal held that the water pollution had been caused by their operation of the factory even though the accused could not be criticised for failing to
122 The strict liability element of the offence of ‘causing’ did not specifically give rise to any challenge and as such little will be said in this Chapter on the matter. 123 [1972] AC 824, 848 (Lord Salmon).
194 discover the defect. In National Rivers Authority v Yorkshire Water Services Ltd,124 the court felt entitled to hold that Yorkshire Water had ‘caused’ the matter to enter controlled waters even though an unidentified third party had physically discharged the iso-octanol. In Southern Water Authority v Pegrum and Pegrum125 the court did not sympathise with the defendant after heavy rainfall led to rain water flowing into a lagoon and eventually into waters. The continued importance of strict liability for the protection of waters was further evident in National River’s Authority v Empress Car Company (Abertillery) Ltd where Lord Hoffmann used clear vocabulary to indicate that fault has no place in the law of ‘cause’ - even in cases where the deliberate act of a third party caused the pollution - because this conclusion is in keeping with ‘the policy of the Act’, namely, ‘strict liability is imposed in the interests of protecting controlled waters from pollution’.126 In Environment Agency v Brock Plc127 in answer to whether liability for the general water pollution offence to ‘cause’ water discharges could arise even in circumstances where the accused had not been aware of the escape through a latent defect, Roch L.J. reiterated the strict liability element of the offence of ‘causing’ water discharges: ‘The liability under section 85(1) is absolute in the sense that proof of negligence is not required and the existence of a latent defect in equipment being used by a defendant does not of itself mean that the question, “Did the respondents cause the pollutant to enter controlled waters” is to be answered: “No”’. The same was once again said in Express Dairies Ltd v Environment Agency. The justices made the finding that ‘cause’ was of strict liability and that the prosecution had to consequently prove the elements of the offence beyond a reasonable doubt but they did not have to establish mens rea and, therefore, did not have to show intent, negligence or recklessness.128 The court cited Alphacell and Empress as authority for this proposition.
In National River’s Authority v Wright Engineering Co. Ltd (1994), the courts reasoned that the accused should not be liable for the offence to ‘cause’ water discharges. The defendant had not foreseen the risk of the third-party vandalism because it was out of
124 [1995] 1 AC 444. 125 [1989] Crim LR 442. 126 (1999) 2 AC 22, 30. 127 [1998] JPL 968. 128 Express Ltd (trading as Express Dairies Distribution) v Environment Agency [2005] 1 WLR 222, 223.
195 proportion to the earlier episodes. Foreseeability is usually used as an ingredient in the tort of negligent (defendant have foreseen what happened) and liability for the offence to ‘cause’ the entry of matter into controlled waters is not based on negligence. It is strict. Empress, however, closed any possibility of mens rea diluting the strict liability element of the offence to ‘cause’ in its attempt to question the relevance of foreseeability to whether the defendant caused the water pollution. Lord Hoffmann confirmed that ‘foreseeability is not the criterion for deciding whether a person caused something or not. People often cause things which they could not have foreseen’. This was reiterated by Lord Clyde that ‘matters of fault or negligence are not of immediate relevance in the present context and the concepts particularly related to those matters should best be avoided’.129
Overall, a pattern seems to be have emerged. Alphacell’s theme about water pollution prevention as the overriding factor guiding the interpretation of the water pollution offence to ‘cause’ is and has been developed with judicial vigour using strict liability. The doctrine has helped justify a broad interpretation of ‘active’, impose liability on the accused in the event of a third-party intervention, and hold employers liable for the act or omission of their employees. With the help of the doctrine of strict liability, the law of ‘causing’ suggests that there must always be something that business operators can do ‘directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations’.130
5.7 Concluding Comments
Chapters Four and Five have shown that the law of ‘causing’ the entry of matter into controlled waters has been the subject of much interpretative inconsistency. This has had varying implications (from case to case and within each case) for the degree of coherence between the theory and practice of water pollution prevention. The question of whether a defendant could be liable for ‘causing’ water pollution in relation to the
129 See Lord Clyde in Empress. 130 Lim Chin Aik v The Queen [1963] AC 160 (Lord Evershed).
196 issues of actus reus (commission and omission distinction, causation), strict liability and vicarious liability has (and arguably is) complex. It is no surprise, therefore, that the scope and boundary of the decision in Alphacell has continually been in a state of flux.
Judicial interpretations of the general water pollution offence of ‘causing’ in Price, Wychavon, Impress and Wright were disadvantageous from the perspective of internal coherence because they were inconsistent with the goal of water pollution prevention. However, the cases of Alphacell, Alfred McAlpine, Pegrum, and Empress have been central in promoting the four key indicators of internal coherence identified in this work. These cases attributed the water pollution offence of ‘causing’ a broad interpretation that was based on the purposive approach to statutory interpretation and the general spirit of environmental prevention so heavily advocated by national, International and European environmental laws. In these latter cases, judicial opinion was based on policy driven analysis that not only recognised the goal of water pollution prevention, but the principle of growth elucidated by Denning. He said: ‘It lays down, or should lay down, the fundamental principles of the law to govern the people: and, whilst adhering firmly to those principles, it should overrule particular precedents that it finds to be at variance therewith. Then only shall we be able to claim that ‘freedom broadens slowly down from precedent to precedent’.’131 In short, therefore, Alphacell, Alfred McAlpine, Pegrum, and Empress suggest that as far as the issue of internal coherence is concerned the law of ‘causing’ water discharges is now as robust as it possibly can be.
Chapters Four and Five illustrate that the judicial task of statutory interpretation is complex. The process of construction is not necessarily predictable or logical. Words may not carry the same value and weight at all times and in all contexts. In reality, the process of construction it is made up of convincing yet incompatible and complex ideas and elements where ‘the threads [of statutory interpretation] will not all run in the same direction’.132 This is illustrated by the fact that the judicial approaches to the
131 See Lord Denning, Discipline of Law (Butterworths 1979) 296. 132 W. N. Eskridge Jr and P. P. Frickey ‘Statutory Interpretation as Practical Reasoning’ (1990) 42 Stanford Law Review 321.
197 interpretation of the general water pollution offences of ‘causing’ and ‘knowingly permits’ have either subscribed to the purposive (focused on legislative history and objective by giving statutes a meaning intended by its creators) or the literal approach to statutory interpretation (giving parliamentary words a plain, ordinary and literal meaning without calling upon ‘legislative intent’).
The above indicates that legislative meaning is not discovered but constructed because ‘different people may construct meaning in different ways, even in relation to the same phenomenon’.133 Judges can be characterised by looking at two extreme types of men or women where ‘on the one hand there is he who loves creativeness, who can take risks, who sees law as a tool to be eternally re-orientated to justice and to the general welfare of mankind. On the other hand, there is the man who loves order, who finds risk uncomfortable and who has seen so much irresponsible and unwise innovation that responsibility to him means caution’.134 With this in mind, it is not surprising to learn that some commentators have not held back in their criticism of the judicial task of statutory interpretation. Tucker described it as a ‘morass of contradictory rules, presumptions, and practices [and] the loss of faith in our ability to ascertain the ‘true’ meaning of statutory language [is] deep’.135 Miers said, ‘the judicial interpretation of statutes has traditionally been characterised by a high degree of tolerated indeterminacy as to what amounts to acceptable practice’.136
Chapters Four and Five have raised several interesting questions that relate to the seven dimensions of choice by Greenawalt in the interpretation of legal text: should interpretation rely on the perspective of the writer or the reader or a combination of the two (reader/writer)?; should an interpreter try to comprehend how actual writers or readers have understood a text or should their focus be on what a reasonable writer or
133 M. Crotty, The Foundations of Social Research: Meaning and Perspective in the Research Process (Sage Publications 1998) 8. 134 D. C. Pearce, Statutory Interpretation in Australia (Butterworths 1974) 141. 135 E. Tucker, ‘The Gospel of Statutory Rules Requiring Liberal Interpretation According to St Peter’s’ (1985) 35 University of Toronto Law Journal 113. 136 D. Miers, ‘Legal Theory and the Interpretation of Statute’ in W Twining (ed) Legal Theory and the Common Law (Wiley-Blackwell 1986) 115, 117.
198 reader would understand (subjective or objective)?; should words and phrases be interpreted to more or less have a uniform meaning across a range of situations or tied closely to specific contexts (abstract or contextual)?; how should a legal text be interpreted when an interpreter finds a conflict between specific aim and broader objectives of a text (specific aim or general objective)?; how far should the courts take into account considerations of justice and social policies (textual meaning and ideas of justice and social desirability)?; how far outside the document should the court go (inquiry limited to document or external evidence)?; and should interpretation focus on the time a legal document was written or the time it is interpreted, especially when a statute spans out over decades or centuries (time of writing or time of interpretation)?137
The findings of Chapters Four and Five broadly support the central argument in this thesis that environmental problems cannot be secured or resolved by the mere introduction of legislation. To ‘launch a new norm into the words without satisfactory provision for monitoring its effectiveness is like buying a new car and never looking inside the bonnet to see if the engine needs servicing’.138 It is important, therefore, to undertake critical evaluations of the law in order to better understand how the laws operate with a view to assessing the need for change. Chapters Four and Five also illustrate that the subjects of environmental law and criminal law are very much related (even though they do not at first glance seem to bear much of a relationship) which together raise some important questions about the role and value of the criminal law for securing environmental protection goals.139
Chapters Four and Five have completed the third and fourth stages of immanent critique. Two issues now become relevant to Chapters Six and Seven respectively - an explanation for the mismatches and the possible measures that could be taken to maintain the internally coherent decisions seen in cases such as Alphacell, Alfred McAlpine, and Empress.
137 K. Greenawalt, Legal Interpretation: Perspectives from Other Disciplines and Private Texts (OUP 2010) 6-8. 138 A. Allott, The Limits of the Law (Butterworths 1980) 38. 139 For example, are environmental protection goals best served through civil or criminal law sanctions?
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CHAPTER SIX: EXPLAINING THE MISMATCH: AN INTERNAL COHERENCE PERSPECTIVE
6.1 Introduction
Judicial interpretations of the general water pollution offence of ‘causing’ in Price v Cromack,1 Wychavon District Council v NRA,2 Impress (Worcester) LTD v Rees,3 and NRA v Wright Engineering Co Ltd 4 were not internally coherent authorities. This Chapter, therefore, undertakes the first part of the fifth stage of immanent critique by offering four plausible justifications for the mismatch identified in Chapter Five. Section 6.2 explains the mismatch by reference to the limited judicial exposure to environmental law, Section 6.3 attributes the incoherence to the nature of legal language, and Section 6.4 to the contrasting approaches to statutory interpretation, in particular judicial preference for the literal approach. Section 6.5 explains the mismatch through the nature of advocacy.
The explanations for the mismatch in this Chapter suggest that the internal incoherence is attributable to more than one source, namely the legislature, courts, and environmental lawyers. These explanations also inform Chapter Seven’s discussion about the way the relationship between legislative ideals and interpretative outcomes can be both, bridged and maintained. The justifications for the mismatch are inferred from the discussions and findings of this thesis as well as the existing legal literature that this Chapter has relied on. While this Chapter argues that there are four factors that determine the interpretation and application of legislation, it cannot be said in absolute terms that they explain (in combination and/in isolation) the mismatches in Chapter Five. They are key explanations for the mismatch because they create an environment in which variable judicial interpretations takes place – and this is what leads to the potential for a mismatch between promise and performance.
1 [1975] 1 WLR 988. 2 [1993] 1 WLR 125. 3 [1971] 2 All ER 357. 4 [1994] 4 All ER 281.
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6.2 Limited Judicial Exposure to Environmental Law
Limited judicial exposure to case law on environmental issues is not a new issue. There is much evidence to illustrate the paucity of environmental prosecutions. Dupont and Zakkour, for example, noted in 2003 that over a four and a half year period, 23.2% of local authorities had not conducted any environmental prosecutions at all and 27.4% had prosecuted fewer than five cases.5 Evidence provided to the House of Commons Environmental Audit Committee indicated that only approximately 10% of all known environmental offences end up in court,6 and in 2008 it was noted that in the North West only 35 company prosecutions were prosecuted for pollution offences each year even though around 1,900 pollution incidents have been identified.7 Similarly, Adshead also highlighted a general decrease in the number of environmental prosecutions; there were 9,285 incidents in 2010 yet only 125 prosecutions, and 9,176 incidents in 2011 but only 120 prosecutions.8 Environment Agency figures show that apart from an increase in prosecutions against waste businesses in 2015 there was an overall decline in environmental prosecutions brought against companies, a year on year decline from 300 prosecutions in 2007 to just 70 in 2015.9 Environment Agency statistics on serious pollution incidents in England for 2015 showed a 19% decrease in the total number of pollution incidents namely, 499 in 2015 compared to 614 in 2014.10
5 C. Dupont and P. Zakkour, Trends in Environmental Sentencing in England and Wales, Department for Environment and Rural Affairs, (2003) 38. 6 House of Commons Environmental Audit Committee - Environmental Crimes and the Courts, Sixth Report of Session 2003–04, available at:
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One explanation for the paucity of (and decline in environmental prosecutions) is the discretionary nature of environmental prosecutions. How the Environment Agency (and in the past the National Rivers Authority) uses its enforcement and sanctioning powers to secure environmental compliance is stipulated in the Environment Agency enforcement and sanctions policy which predominantly states that environmental prosecution is a matter of last resort. Agency officials must first be satisfied that they meet the Code for Crown Prosecutors requiring a realistic prospect of conviction, the most appropriate enforcement action based on the available evidence, and public interest involving a consideration of the resulting implications and consequences.11 Judges are unlikely to be exposed to environmental cases in the foreseeable future in the light of the new enforcement culture of alternative environmental sentencing mechanisms. The introduction of the new regulatory sanctions has pulled enforcement decisions away from the criminal courts. This, consequently, could lead to a reduction in environmental prosecutions in the future.
The Regulatory Sanctions Review (Sanctions Review) was launched by the Cabinet Office in 2005 and whose core recommendations were accepted and implemented by the Government under the Regulatory Enforcement and Sanctions Act 2008.12 The Sanctions Review concluded that the criminal law would remain central to any regulatory system of sanctions, but that a richer range of regulatory (or administrative) sanctions should be made available to regulators because better advice leads to better regulatory outcomes, particularly in small businesses.
The legislative initiatives introduced through the Regulatory Enforcement and Sanctions Act 2008 have now started to focus on the introduction of civil sanctions. Civil sanctions are an attempt to improve the legal system by introducing a set of sanctions in criminal law that have an interest in civil law. A criminal sanction tends to be a fine or a prison sentence whereas civil sanctions are much broader because they can include actions for
11 See:
203 the clean-up and restoration of the damaged part of the environment. Civil sanctions are not designed to replace but instead supplement the criminal sanctions to provide regulators with greater flexibility to apply a sanction that is best suited to the circumstances of the case. Enforcement undertakings is one example of a civil sanction that was introduced on 6th April 2015 and is available for a range of environmental offences in England including the water pollution offences of ‘cause’ and ‘knowingly permits’. It requires offenders to make an offer to do acts or pay money to restore or remediate any harm caused by their offending.13 Other examples of civil sanctions include compliance notice, fixed and variable monetary penalties, and third-party undertaking. The simple point here is that while the criminal law is important to the environmental law it has a declining role to play in the realm of environmental protection and the realisation of the legislative goals of environmental law.
Against the paucity (and decline) of environmental prosecutions is the argument that judicial exposure to environmental cases is all the more important when noting how rapidly environmental law has and is developing. The courts have to navigate their way round new terminology and technical concepts,14 as well as a range of components that happen to be ‘both connected and, at times, contradictory’.15 Environmental law as ‘hot law’ is directly concerned with ‘hot situations’ in which the agreed frames (legal and otherwise) for how we understand and act in the world are in a constant state of flux and contestation’.16 Environmental law, therefore, ‘stands in stark contrast to those areas of law where actors, interests, preferences, and thus rights and responsibilities, can easily be identified and thus workable frameworks of legal action can operate’.17
13 See C. Burman, ‘Enforcement undertakings have been extended’
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Lack of judicial exposure to environmental case law, combined with the rapid growth and complexity of environmental protection laws, has the potential to hinder the realisation of legislative objectives and internally coherent interpretative outcomes. Judges might be reluctant to pursue a more environmentally driven model of statutory interpretation that draws on key environmental goals such as water pollution prevention (and/or the broader framework involving goals of sustainability, prevention, precaution and polluter pays) knowing that their experience of disposing of environmental case law has been limited. This first explanation for the mismatch in Chapter five, therefore, argues that the limited judicial exposure to environmental case law explains the incoherence between the goal of water pollution prevention identified in Chapter Three and the interpretative outcomes discussed in Chapters Four and Five. The limited judicial exposure to environmental law does not, however, entirely explain the mismatch since the low rate of environmental prosecutions and the limited judicial exposure to environmental law is still an issue.
6.3 The Nature of Legal Language
When exploring some of the most basic problems facing the legislative drafter, Dickerson identified ‘ambiguity’ and ‘over-vagueness’ as two main ‘diseases’ of legislative language. Dickerson argued that ambiguous language is ‘capable of two or more competing thrusts’18 whereas vague language concerns the degree to which it is uncertain in its respective applications to a number of particulars.19 Graham similarly said that ‘vague’ and ‘ambiguous’ are two separate concepts where ambiguity refers to two or more constructions that are different and specific whereas vagueness deals with the breadth of legislative language that give rise to a range of meanings not necessarily consistent with each other.20
18 R. Dickerson, ‘The Diseases of Legislative Language’
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This work describes the terms ‘cause’, ‘knowingly’ and ‘permits’ as being vague and ambiguous. The interpretative uncertainty and confusion that surrounded the meaning of these terms was in part due to their vague and ambiguous status and nature. Judicial willingness to interpret laws in a manner that is consistent with internal coherence depends on the existence of clear legislative language that can readily be figured out by judges. Whenever a statutory word or phrase contains more than one meaning and is, therefore, susceptible to more than one interpretation, the problem of ambiguity undermines the effectiveness of the law because it ‘is likely to mislead or confuse’ at least some of those faced with the responsibility of interpreting it’.21 The factually similar third party intervention cases of Wright and Empress as well as the passive/active distinction authorities of Price and Empress discussed in Chapter Five illustrate that it was the uncertainty that surrounded the scope and meaning of the offence to ‘cause’ water discharges that led to the interpretative difficulties. In these cases, it took judges twice as long to interpret the offence of ‘causing’ because the appeal courts said one thing about the meaning and scope of this offence and the judges in the lower cases said something markedly different.
The House of Commons Political and Constitutional Reform Committee in their report Ensuring Standards in the Quality of Legislation (2013) raised concerns about vague and ambitious legislative language.22 The Report made five recommendations in order to improve legislative standards following an overall consensus amongst witnesses that it was necessary to introduce a set of standards that all legislation should be expected to adhere to. One such recommendation included a Code of Legislation Standards for ‘good quality legislation’, to set quality standards against which to compare and judge Bills and Acts agreed between Parliament and the Government. A draft Code of Legislative Standards for scrutinising legislation set out some common principles, which, if applied to legislative proposals would minimise the effect of poor quality legislation. One such
21 J. Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law: Essays on Law and Morality (OUP 2009) 214. 22 House of Commons Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation, First Report of Session 2013–14 Volume I: Report, together with formal minutes, oral and written evidence.
206 principle alluded to the importance of avoiding vague and ambiguous language by asking whether legislation is ‘understandable and accessible’.23
The argument that a document that is not readily comprehensible takes longer to understand and is less likely to be understood is also advocated in the good law initiative. This initiative is an appeal to everyone interested in the making and publishing of law to come together with a shared objective of making legislation work well for the users. Indeed, the volume of statutes and regulations, their piecemeal structure and their level of detail and frequent amendments, make legislation hard to understand and difficult to comply with. The Office of the Parliamentary Counsel (OPC) are asking a range of partners (in government and in Parliament and beyond) to experience good law that is necessary, clear, coherent, effective, and accessible by looking at the following four areas from the different perspectives of citizens, legislators and professional users: content (how much detail?), architecture of the statute book (what should go into Acts and Regulations?), publication (how will the law appear to online users?) and indeed language and style (is the language easy to understand?). The OPC have demonstrated their commitment to the cause by undertaking a number of practical steps alongside their core task of writing laws that are effective and readily understood such as promoting greater openness about how laws are drafted and debated and looking at explanatory materials published with Bills.
There also lies the broader argument that vague and legislative language can make it difficult for those to whom the laws apply to adhere to legal rules. It is their lack of adherence that can ultimately undermine the legislative goals that have been set out in statutory provisions. Krongold advocates the importance of minimising the use of vague and ambiguous legislative language because the rule of law depends on it namely, a democracy suggests that people should be able to understand the laws that they are expected to obey: ‘laws should not be drafted on the assumption that a trained lawyer will be available to interpret them. Fairness demands that people should be informed of
23 This is defined by, amongst other things, providing new definitions for existing legal concepts and index clauses for definitions.
207 benefits or obligations in language which they understand . . . When people don’t know the law or don’t understand it they are less likely to comply with the law or exercise their rights under it’.24
Vague and ambiguous legislative language could hinder the realisation of internally coherent interpretative outcomes but there are several plausible explanations for why statutes are worded in this manner. All writing assumes a certain amount of knowledge on the part of the reader but the writer may have assumed that the reader knows more than in fact was the case and as a result, the document may be stated too succinctly or abstrusely.25 Or it may be that vague or ambiguous words are deliberately chosen so that they can easily be adapted to fit particular circumstances and respond to societal changes arising through for example, technological and economic development.26 Indeed, the drafters may have deliberately deployed the terms ‘cause’, ‘knowingly’ and ‘permits’ in order to equip judges with the necessary flexibility and freedom to capture water pollution situations that may not have been within the contemplation of the legislature when they first introduced these pollution prevention offences during the late 1870s.27 Chapters Four and Five support this point by showing that water discharge activities can occur in various circumstances and contexts such as blockages, equipment failures, omissions, latent defects, the location of polluting matter, acts of employees, and interference by unknown third parties. Without the interpretative flexibility offered by vague and ambiguous legislative language, it would be difficult if not impossible for the courts to interpret the law in a manner that captures the kind of situations that the legislature did (and did not) foresee when they first established the relevant water pollution prevention offences.
24 S. Krongold, ‘Writing Laws: Making them Easier to Understand’ (1992) 24 (2) Ottawa Law Review 495, 501. 25 See D.C. Pearce, Statutory Interpretation in Australia (Butterworths 1974) 1 26 ibid. 27 See the discussion in R. N. Graham, ‘A Unified Theory of Statutory Interpretation’ (2002) 23 Statute Law Review 91.
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The legislative drafters may have deployed the vague and ambiguous terms ‘cause’, ‘knowingly’ and ‘permits’ also because legislative drafting takes place in a highly pressurised environment. Various Bills are dealt with simultaneously and legal drafters are expected to placate numerous bodies such as administrative and legal civil servants, ministers, Members of Parliament, practising barristers, solicitors and judges.28 Drafters also ‘universally work under unreasonable time constraints, often with half-baked instructions’ and to which there is the tension of increasing workloads and shrinking resources.29 Indeed, Hansard suggests that during the legislative process the water pollution offences of ‘causing’ and ‘knowingly permits’ had suffered from limited parliamentary time. In 1876, Mr Playfair explained that the hasty debate behind the 1876 Act was due to limited Parliamentary time whereby the Bill was discussed at 1 o’ clock in the morning when interested members were absent.30 In 1950, Mr Colegate said the same, with the consequence that the short notice behind the Rivers (Prevention of Pollution) Bill 1950 excluded the necessary consultations with the Waterways Committee or Local Authorities Association.31 Major Tufton Beamish (Lewes) echoed this sentiment: ‘I join with some of my hon. Friends in protesting at the speed with which we are expected to absorb legislation put before us, and worse than that, the speed at which the various organisations have to collect information from their members over a large area . . . . The time we have had to look at this Bill has been too short for many hon. Members and far too short for many of the interested organisations’.32
In summary, therefore, if the legislative drafter produces a detailed and specific legislative provision there is a risk that the legislative provision is too detailed and inflexible to deal with the intended audience behind the legislative provision. Yet if they adopt vague and ambiguous legislative language it can compromise the realisation of internal coherence. Quite possibly, the judges in the ‘causing’ cases of Price, Wychavon, Impress and Wright may have been cautious not to stretch the meaning and scope of the
28 The Rt Hon. Lord Renton QC, ‘Current Drafting Problems in the United Kingdom’ (1990) Statute Law Review 11, 13. 29 Above n. 24. 30 HC Deb 1 August 1876, vol 231, cols 281-5. 31 HC Deb 27 November 1950, vol 481, cols 801-906, 818. 32 ibid.
209 legislative provision too far because this would have left the law open to a wider range of interpretations that might not necessarily have reflected the kind of situations that the legislative water pollution provision sought to target.
The legal language used by the legal draftsperson offers a plausible explanation for the internally incoherent interpretative outcomes identified in Chapter Five. The following explanation takes the emphasis away from the legal drafter. It argues that the law interpreter has much influence in shaping the meaning and scope of the law using their interpretative freedom.
6.4 The Nature of Judging
Judges are important to the legal system. As Chapters Four and Five have shown, judges contribute to the final legal determination of issues, provide legally authoritative interpretations of legislative provisions, integrate emerging principles of law into the tapestry of existing precedent, and make critical decisions that shape and influence the relationship between law in books and law in action. This section argues that the judges in Price, Wychavon, Impress and Wright tasked with the interpretation of the general water pollution offence of ‘causing’ water discharges played a key role in shaping the mismatches. They exercised their interpretative freedom in a manner that did not satisfy the indicators of internal coherence. They chose to interpret the offences narrowly, they applied the literal rather than the purposive approach to statutory interpretation, and they lacked an awareness of the environmental law landscape in which the water pollution offences were situated within.
6.4.1 The Literal Approach to Statutory Interpretation
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Scholars such as Eskridge,33 Bennion,34 Driedger,35 and Radin36 explain that the process of statutory interpretation is subjective and complex. They explain that the different approaches to statutory interpretation outlined in Chapter Two define the different matters that judges may take into account when interpreting legislation, and the different implications for internal coherence. This Section explains the mismatch in Chapter Five with reference to the literal interpretations of the water pollution offences to ‘cause’ and ‘knowingly permits’. In doing so, this explanation is aware of the possible reasons for why the courts may have deployed the literal interpretative approach even though it lacks the potential to promote the goal of water pollution provision.
Chapter Four explained that the literal approach to statutory interpretation seeks to give effect to the plain words of a statute by requiring legislative words to be read in their ordinary sense. Parliamentary intention is found within four corners of a statute and cannot be sought using legislative history and/or other extrinsic aids.37 Where statutory language is plain, ‘it is not open to the court to remedy defect in the draft’.38 As Lord Reid said in Black-Clawson International Limited v Papierwerke Waldolf Aschaffenburg (1975): ‘We often say we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said’.39 According to the literal approach, therefore, clear words in a statute must be followed even if they lead to a manifest absurdity because the court ‘has nothing to do with the question whether the legislature has committed an absurdity’.40 The application of the literal approach in Price, Impress (Worcester) and Wright meant that the offence to ‘cause’ the entry of matter into controlled waters was given an ordinary everyday meaning. The legislative goal of water pollution prevention did not enter the judicial equation and as
33 W. N. Eskridge, ‘Statutory Interpretation as Practical Reason’ (1989) 42 Stanford Law Review 321. 34 See F. Bennion, Statutory Interpretation (Butterworths 1997) and O. Jones and F. Bennion, Statutory Interpretation (6th Edition, Butterworth) 2013. 35 See E. Driedger, Driedger on the Construction of Statutes (3rd edition, Butterworths 1994) 137. 36 M. Radin, ‘Realism in Statutory Interpretation and Elsewhere’ (1935) 23 Californian Law Review 156. 37 S. Beaulac ‘Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?’
211 such, there was no judicial awareness of why or what the 1876 legislature hoped to achieve when rendering it illegal to ‘cause’ or ‘knowingly permit matter to enter waters. The overall effect of the literal interpretation of ‘cause’ and ‘knowingly permit’ was for the judges to have acted as the ‘timid spirit’ rather than the ‘bold soul’ when it came to interpreting and developing new and existing laws.41 While the process of statutory interpretation allows judges to choose to emphasise a certain approach to statutory construction (in turn influence internally coherent interpretative outcomes) and while Chapters Four and Five showed that the literal approach to statutory interpretation is not compatible with the notion of internal coherence, there are plausible reasons for why judges may have applied this interpretative approach when dealing with the offences to ‘cause’ and ‘knowingly permits’ the entry of matter into controlled waters.
Chapter Three explained that the literal approach does not require judges to search for the potentially indefinable thing called ‘legislative intent’. The search for a legislative intention has been described as something of a wild goose chase because ‘it is like looking for a very black cat in a very dark room… only there is really no black cat there… but, every now and then, someone jumps up shouting, “I’ve found it, I’ve found it!”’42 Even when some legislative intention appears to exist, the search for such an intention could prove arduous and meaningless if there is more than a single consistent purpose. It is also unrealistic talking about legislative intent because it is difficult to say that the legislature as a group had an intention ‘in connection with words which two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, different ideas and beliefs’.43 The lawmaker and legislature are also fictional, only one or two people often draft bills, many vote against it, and those that support it often carry many ideas and beliefs. For these reasons it is no surprise that legislative intention has been
41 This reflects the two types of judges that Lord Denning identified. See Candler v. Crane, Christmas & Co. [1951] 2 KB 164, 178. 42 I. McLeod, Legal Method (4th Edition, Macmillan Press 2002) 225. 43 F. E. Horack, ‘In the Name of Legislative Intention’ (1932) Indiana University School of Law, 119, 125.
212 described as a ‘very slippery phrase’,44 a ‘flabby generality’ that may be of little assistance in interpreting sections of legislation.45
Eskridge and Frickey see the continuing appeal of ‘textualism’ (roughly equivalent to literalism) because it appeals to the rule-of-law value that citizens ought to be able to read the statute books and know their rights and duties. Textualism also appeals to the values of legislative supremacy and judicial restraint by emphasising the statutory words chosen by the legislature rather than what seem to be more abstract and judicially malleable interpretive sources.46 Judges may have accorded the general water pollution offence to ‘cause’ the entry of matter into controlled waters a literal interpretation also in the light of the doctrine of the separation of powers which stems from L’Esprit des Lois.47 The 18th-century French Philosopher Montesquieu maintained that the doctrine ensured the political stability of Britain. Today, the separation of powers acts as a mechanism for fostering a system of necessary checks and balances for good government, unlike the general previous view that major institutions should be divided so that the power of one does not exceed the other two. The literal approach is often applied by judges who believe that their constitutional role is limited to applying the law as created by Parliament. Their constitutional subordination to Parliament means that they do not have the authority to make law by dictating what the provision will mean but rather what Parliament meant. That responsibility is assigned to the elected legislative branch of the state.48 As Lord Diplock said in Duport Steel v Sirs (1980), the court ‘may sometimes be willing to apply this rule [literally] despite the manifest absurdity that may result from its application’ because the British constitution is ‘firmly based upon the separation of powers: Parliament makes the laws, the judiciary interprets them’. For
44 Lord Watson in Salomon v Salomon & Co Ltd (1987) AC 22. 45 J.F. Burrows, ‘Statutory Interpretation in New Zealand’ (1984) 11 (1) New Zealand Universities Law Review 1, 3. 46 F. H. Easterbrook, ‘What Does Legislative History Tell Us?’ (1990) 66 Chicago Kent Law Review 441. 47 The three forms of political power (legislature, executive and judicial) should be separated so that no one person or institution can exercise more than one type of power. 48 See ‘Separation of Powers < www.parliament.uk/briefingpapers/sn06053.pdf > accessed 15 September 2015.
213 judges to then ‘fill up the gaps and make sense of the enactment’ would be ‘a naked usurpation of the legislative function under a thin disguise of interpretation’.49
The argument that the literal approach prevents judges from making laws (and thus usurping or challenging the validity of statutes) is, however, diluted by the discretion thesis posited by positivists. This suggests that cases that do not fall clearly under a valid rule (hard cases) can only be addressed if judges exercise their discretion to create new laws.50 Some official, like a judge, must find a solution to a case where the law contains a gap when ‘exercising his discretion’,51 to reach beyond the law for some other sort of standard to guide him in engineering a fresh legal rule or supplementing an old one.52
Although there is merit and logic in applying the literal approach when constructing statutes, this interpretative approach makes difficult the task of securing internally coherent interpretative outcomes. One consequence of construing legislative words in their ordinary sense is to produce ‘absurd’ interpretations even though what amounts to an ‘absurdity’ is not as straightforward and trouble-free to establish as it might at first glance appear.53 This means that the court must apply that meaning no matter how unreasonable the result. There is the further argument that the literal approach does not appreciate that the English language often comprises of many vague and ambiguous terms which may carry different interpretations by different people in different contexts at different times. Indeed, The Law Commission and the Scottish Law Commission in their report, The Interpretation of Statutes (1969) singled out the literal approach for special criticism because literal interpretations of the law often fail to give due weight to wider contexts.54 Another criticism of the literal approach is that this interpretative approach may tempt judges to ‘invent fancied ambiguities as an excuse for failing to give effect to the plain ordinary meaning [just] because they consider the consequences to be
49 ibid. 50 See K.E. Himma, ‘Judicial Discretion and the Concept of Law’ (1999) 19 Oxford Journal of Legal Studies 92. 51 J. Raz, The Authority of Law, Essays on Law and Morality (Clarendon Press 1979) 182. 52 See R.M. Dworkin, Taking Rights Seriously (Harvard University Press 1977) 17. 53 F. Bennion, Statutory Interpretation, Technique of Statutory Interpretation (Longman 1990) 91. 54 See Paragraph 8 of the report.
214 inexpedient or even unjust or immoral’.55 Atiyah and Summers note the criticism by American lawyers that the literal approach ‘may be merely a covert way of importing values without discussion or analysis’.56 What is more, the literal approach assumes that legislative words have a fixed and constant meaning when it might actually be erroneous to suggest ‘that a word has been imbued with a single and immutable meaning by the legislature’.57 Eskridge provides the following example to argue that the same can be said about legal texts: ‘a note saying ‘go fetch some meat’ could not be interpreted without knowing and understanding its context: ‘What is the purpose of this order for meat? If you know from prior context we are having a fancy dinner party, you might bring us some prime steaks. If you know the meat is for breakfast tomorrow morning, you might bring us bacon and sausage. What kind of meat do we like generally? If you know we despise red meat, you might bring us fowl, or perhaps even fish (which many people don’t consider meat at all). And so on’.58
This section has explained the incoherence in Chapter Five with reference to judges and their preference for the literal (rather than the purposive) approach to statutory interpretation. This explanation must, however, be read against the broader interpretative context because such wider considerations may make it harder for judges to incorporate legal notions (accountability, integrity, and internal coherence) into the interpretative process. The process of statutory interpretation is not mechanical either and inevitably there will be uncertainty about the way in which a court will attribute a meaning to legislative words used in the legislation. As Donaldson J. said in Corocroft Ltd v Pan American Airways Inc: ‘In the performance of this duty the judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issues forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the
55 Lord Diplock in Duport Steel v Sirs [1980] 1 WLR 142. 56 P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Clarendon Press 1987) 107- 108. 57 Above n. 25 at 139. 58 See H. Hart and A. Sacks, The Legal Process: The Basic Problem is the Making and Application of Law (Harvard University Press 1958) 1146-1147.
215 appropriate rules as tools of their trade’.59 Furthermore, where there is more than one judge hearing a case there is no guarantee that each judge will choose the same interpretative approach. Even if judges were to agree on the same interpretative approach, there is scope for many differences of opinion. Judge Frank’s analogy between the interpretation of statutes and the interpretation of music is apt here: ‘there is no single way of interpreting a musical composition and that the interpreter may choose among a number of equally valid interpretations’.60
The composition of the judiciary as middle class, middle aged white males is well documented.61 Judge Joseph QC, a top female judge, for example, recently explained that English courts are mainly comprised of ‘white’, middle-aged, males’ when she explained the need for changes in the court room.62 Sadiq Khan (then MP) similarly explained that three-quarters of all judges in England and Wales are male and 95% are white, making us ‘out of step with the rest of the world’. Less than one-fifth of 108 serving High Court judges are women and only one in 20 is black and minority ethnic.63 Lord Neuburger, President of the Supreme Court between 2012-2017, further suggested that combination of recruitment from the Bar and a lack of strategy has resulted in a judiciary that is ‘male, white, educated at public school, and from the upper middle and middle classes’.64 One possible argument here is that judicial characteristics as to their social class, age, gender and race could influence their ability/inability to promote internally coherent interpretations of the law. The composition of the judiciary may affect judicial outlooks and limit their ability to fully absorb and analyse the information relating to
59 [1969] 1 QB 622, 638. 60 J. Frank, ‘Words and Music: Some Remarks on Statutory Interpretation’ (1949) 47 Columbia Law Review 1259. 61 See for example, Judicial Diversity Taskforce, Improving Judicial Diversity: Progress Towards Delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’ (May 2011). 62 J. Reed, ‘White, middle class, male court rooms don’t reflect modern Britain’
216 rapidly developing and increasingly changing and complex disciplines such as environmental law.65
The above argument was noted in Sir Geoffrey Bindman and QC Karon Monaghan QC’s report Judicial Diversity: Accelerating Change. They argued that a judiciary is likely to produce well-reasoned decisions if it offers diversity of experience. Judges that are recruited from a wider pool will bring a wider range of backgrounds, experiences and knowledge that better inform and enhance decision making.66 Bindman and Monaghan cite Lady Hale who, using her twenty years’ experience of being a judge and a Law Lord or Supreme Court Justice for ten of these, similarly argued that diverse courts are better courts. They help make a positive difference because everyone brings their own ‘inarticulate premises’ to the business of making the difficult choices involved in judging.67 She cited a few judgments where her experiences and perceptions of life made a difference to her view of the law including the nature of the damage done to a woman by an unwanted pregnancy and the definition of violence to include more than hitting.
To summarise the discussion so far, the mismatches identified in Chapter Five have been explained by reference to the paucity of environmental prosecutions (Section 6.2), the nature of legal language (Section 5.3) and the judicial application of the literal approach to statutory interpretation (Section 6.4). Section 6.5 continues to explain the mismatch in Chapter Five by suggesting that it is not just law-makers and law interpreters that shape internally incoherent interpretations but legal advocates too.
6.5 The Nature of Advocacy
65 K. Greenawalt, ‘Variations on some Themes of a Disporting Gazelle’ and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter (2000) 100 (1) Columbia Law Review 176, 210. 66 Sir G. Bindman QC K. Monaghan QC, Judicial Diversity: Accelerating Change:
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Section 6.5 argues that the environmental lawyers representing the general water pollution offences of ‘causing’ and ‘knowingly permits’ may have shaped the mismatch by both, establishing constructive links with judges, and carefully constructing environmental crimes to appear in a certain favourable light using court room style to win judicial favour.
The structure of the relationship between the justices and the lawyer is one that allows and encourages experienced lawyers to establish positive links with judges. One potential consequence of this is to create opportunities for incoherent interpretative outcomes. In questioning the importance of lawyers in the decision-making of the US Supreme Court, McGuire, for example, described lawyers as repeat players that powerfully affect judicial outcomes. On the one hand, justices have certain informational needs during the decision-making process such as the need to have a clear focus on the issues presented in a case and the implications of a decision for public policy. On the other hand, lawyers also have certain professional needs such as the kindness and empathy of the justices to their cases presented before the court. The structure of the relationship between the justices and the lawyer is one that, therefore, allows and encourages experienced lawyers to establish constructive links with judges because their expertise is not only valuable (since so few lawyers practice on a sustained basis) but valued too because the informational needs of the courts are so great.68 On this understanding, therefore, lawyers can be said to provide a vital influence on the interpretative outcomes reached by the courts because ‘justices need reliable information and thus place a premium on its more credible suppliers’.69
The structure of the relationship between the judge and the lawyer is strengthened by the perception that they are both ‘cut from the same cloth’.70 The vast majority of judges have previously practiced law and been members of the Bar. They have similar educational backgrounds and training, no doubt been exposed to the same approaches
68 K. T. McGuire, ‘Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success’ (1995) 57 (1187) The Journal of Politics 189. 69 ibid. 70 R. T. Shepard, ‘Judicial Professionalism and the Relations Between Judges and Lawyers’ (2014) 14 Notre Dame Journal of Law, Ethics and Public Policy 223.
218 to legal problem solving, studied from the same academic literature, and passed the same set of exams. The fact that judges and lawyers share many similarities means that judges are all too able to quickly understand and relate to a lawyer’s perception of a case which in turn helps create constructive links. According to Barton, it also, however, helps create bias between the two at two levels. The first, which operates on a conscious level, can be described as prestige maximisation because judges do not want to be treated as pariahs by their friends and colleagues. They, therefore, seek acceptance and admiration from their learned colleagues. The second type of bias, which operates on an unconscious level, involves judges trying to convince lawyers as well as themselves that their decision (irrespective of their political affiliations or ideologies) is correct and unbiased.71
Schneider makes a similar point to Barton. Although judges are usually given relatively little formal training, the lawyers who become judges will usually have had abundant opportunities to watch judges work. From that experience and ‘from talking and working with veteran judges, and from dealing with the lawyers who practise before them, new judges learn a set of professional norms, some formally articulated, some simply assumed’.72 In other words, lawyers and judges ‘acquire habits of thought that limit the range of arguments that they will find acceptable and the kind of decisions that they will be willing to advocate and reach. They learn the substantive norms which tell them what kinds of principles are legitimate and illegitimate’.
Rhetoric is the study of effective speaking and writing. It is the art of persuasion. The concept originated in Athens in the fifth Century by a group of innovators known as Sophist who came to Athens from Sicily, Syracuse and Asia. The Sophists, the first group of advocates who travelled from city to city to speak to the young about how to debate and speak, considered the art of persuasion as widely necessary for political and legal advantage in classical Athens.73 With rhetoric in mind, this thesis questions whether the
71 B. H. Barton, The Lawyer-Judge Bias in the American Legal System (CUP 2011) 14. 72 C. E. Schneider in The Uses of Discretion (ed) (OUP, 2001) 81. 73 R. Toye, Rhetoric: A Very Short Introduction (OUP 2013) 7.
219 environmental lawyers dealing with the internally incoherent water pollution cases were influenced by rhetoric, particularly, the techniques associated with the Five Canons of Rhetoric which has much potential to sway audiences to a certain way of thinking.74 Invention/inventio is about coming up with a good idea or having something useful to say to the audience, to consider what the audience needs to know and why they need to know it. Arrangement/dispositio is concerned with the way a communication is constructed or organised where important choices are made about where and when things show up in a document. Strategic decisions are made about what comes first, what goes last, where the key points of emphasis are, and so forth. Style/elocutio refers to choices about the impact on an audience; what words, phrases and stories will be used, what will be the pace, and will figures of speech or other linguistic devices be used to enhance understanding and appeal. Memory/memoria is when originally conceived claimed that good orators would have their speech so well memorised that they could give it without hesitation. However, memory in rhetoric means much more than memorization, that is, a speaker or communicator should know as much as is possible about a topic before their presentation so that should an occasion arise to improvise or answer questions, they would know the topic so well that they could respond with accuracy and professionalism. Finally, delivery/ pronuntiatio is about the way in which the speech is delivered involving for example, eye contact, posture, professionalism, dress sense, confidence and body language.75
While some time has passed since De Prez’s discussion about the ritual trivialisation of environmental wrongdoing, her argument that a lawyer’s representation of a case can affect judicial decision-making remains useful if not valid in supporting this work’s argument that environmental advocate can influence judicial-making. Lawyers can affect judicial perceptions of environmental offences - and ultimately internally incoherent
74 The Five Canons of Rhetoric is a powerful guide for creating powerful speeches and writing. It was brought together and organised by the Roman Orator Cicero in his treatise De Inventione (written around 50 BC). The Roman Rhetorician Quintilian explained the Five Canons in more detail 150 years later in 95 AD. The Visual Communication Guy, ‘The Five Canons of Rhetoric’
220 interpretative outcomes - because they are often conscious of the argument that they present and how they express their material in the court room context.76
De Prez’s observation of how 25 corporate environmental offenders imposed meaning on the offences with which they were charged found that there were ample opportunities in the court room for lawyers to trivialise environmental crime using various strategies. One strategy was to undermine the environmental harm in question. Where photographic evidence was, for example, provided by the Environment Agency, many defendants would convert Agency evidence into different modes of measurement in order to make them appear less significant and smaller. Another technique by the defence lawyer involved the careful selection of words when presenting the polluting incident before the courts.77 For example, in a water pollution prosecution, defence counsel, to diminish the importance of the case, retorted to an Agency witness: ‘You call it controlled water, I call it a ditch’. He later referred to the prosecution's case as ‘... a rather desperate attempt to make a ditch a watercourse’. This defendant was acquitted by the magistrates, although the Agency successfully obtained a conviction on appeal.78 The third technique of environmental trivialisation identified by de Prez was denial. Some environmental offences (such as ‘cause’ and ‘knowingly permits’) are inchoate offences which means that the offence does not require proof of actual harm but instead looks at the nature of the discharge to ask if that discharge is capable of harming controlled waters. For example, a prosecution for an unauthorised 46 discharges of raw sewage into a brook, the defence counsel questioned the common perceptions of sewage content as ‘what is flushed away’, describing sewage as including clean water from washing machines, sinks and rainwater. The test of ingestion was often used by defendants to persuade the courts of the inactive nature of the substance involved. In one environmental case, it was said that Didrazonic acid is a radiographic agent and is drunk prior to an x-ray, and in another case, the defence counsel repeatedly emphasised that the pollutant, maize starch, was ‘an edible product, and not a toxic substance’ that did
76 J.J. Spigelman, ‘From Text to Context: Contemporary Contractual Interpretation’ (2007) 81 The Australian Law Journal 322. 77 P. De Prez, ‘Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecutions’ (2000) 12 Journal of Environmental Law 65. 78 ibid, 75.
221 not pose any hazards to human health. Indeed, the emphasis on human health rather than the environment aimed to distract the court from the true consequences of the environmental wrongdoing.79
The influence of the lawyers in the court room context is also recognised in Gold’s argument that lawyers in the court room are ‘traffickers in words’. The verbal strategies used by lawyers can influence jurors by assessing and taking on board the perceived reliability and powerfulness of their language. Powerful speakers avoid the characteristics of more passive speakers who may resort to hedge words (sort of, kind of), intensifiers (very, really) meaningless fillers (you know) and personal references (my dear friend). Gold gave the example of experiments in which jurors consistently evaluated powerful speakers and gave claimants with powerfully-speaking witnesses substantially larger damage awards than claimants whose witnesses spoke less powerfully.80 Gold’s fundamental argument then is that this type of covert advocacy is problematic because it weakens a jury’s cognitive independence. When a person is provided with an argument or a statement from a credible source, a psychological process of ‘internalisation’ takes place where a person internalises a statement which he or she integrates into his or her belief value. The values expressed in the jury’s verdict may then reflect those of the defence counsel and the client rather than those of the jury and the community it represents. That said, Gold recognised that the force of his analysis is mitigated by factors such as a jury being induced (even subconsciously) to employ or express a value it does not already embrace. The psychological conflicts between existing personal biases and values and those communicated subconsciously can be so great that a jury would not act on the subconscious message. Furthermore, if one advocate influences jury decision making on a subconscious level, the other advocate can presumably attempt to negate that influence.81
Overall, the court-lawyer relationship plausibly adds to this Chapter’s explanations for the mismatch identified in Chapters Five in relation to the legislative ideal of water
79 Above n. 77 at 73. 80 V. Gold, ‘Psychological Manipulation in the Court Room’ (1987) 66 (3) Nebraska Law Review 561, 564. 81 ibid, 575.
222 pollution prevention and the interpretative outcomes seen in cases such as Price, Wychavon, Impress and Wright Engineering.
6.6 Chapter Summary
This Chapter has explained the mismatch in Chapter Five using four key strands. These strands have brought together various factors from the English legal system, ranging from the vague and ambiguous legislative language governing the relevant pollution provision to the literal approach to statutory interpretation, and from the judicial characteristics of being white middle class and middle aged, to the influence of environmental lawyers on judges. It will be interesting to see if and how future developments of environmental law will affect the goal of water pollution prevention and internally coherent interpretative outcomes, particularly in the light of recent legal changes such as availability of environmental sentencing guidelines and the rising interest in civil penalties for criminal environmental offenders. Chapter Seven addresses the second part of the fifth stage of immanent critique by exploring the issue of reform with a view to minimising/eradicating incoherence and maintaining the internally coherent outcomes identified in Chapters Four and Five.
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CHAPTER SEVEN: PROMOTING AND MAINTAINING INTERNAL COHERENCE
7.1 Introduction
This thesis has argued that legislation is an important instrument for securing desired outcomes although the mere introduction of legislation does not necessarily lead to the realisation of desired goals. Chapter Six introduced and addressed the first part of the fifth stage of immanent critique. It explained the mismatch in Price v Cromack,1 Wychavon District Council v NRA,2 Impress (Worcester) LTD v Rees,3 and NRA v Wright Engineering Co Ltd4 with reference to four key factors namely, the paucity of environmental prosecutions, and the nature of legal language, judges and advocacy.
This Chapter deals with the second part of the fifth stage of immanent critique. It offers three key reform proposals in order to help address the mismatches in Chapter Five and also promote internally coherent interpretative outcomes primarily seen in the cases of Alphacell v Woodward,5 NRA v Alfred McAlpine Homes East LTD,6 and National Rivers Authority v Empress Car Company (Abertillery) Ltd.7 Section 7.2 explores the idea of plain legislative writing, Section 7.3 advocates the purposive approach to statutory interpretation, and Section 7.4 supports the notion of judicial environmental education vis-a-vis guidelines and training.
Law reform has a long history in the common law world. In England, systematic efforts to modernise the legal world can be traced to the late 19th Century.8 Legal reform is, however, a difficult subject. Decisions about legal reform cannot be made in isolation.
1 [1995] 2 ALL ER 113. 2 [1993] 1 WLR 125. 3 [1971] 2 All ER 357. 4 [1994] 4 All ER 281. 5 [1972] AC 824. 6 [1994] 4 All ER 286. 7 [1998] 1 All ER 481. 8 See R. Sackville in Legal Change – Essays in Honour of Julius Stone (edited by A. R. Blackshield (Butterworths 1983) 283.
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The subject matter is surrounded by competing interests such as ‘stability and change’, ‘certainty and flexibility’ and ‘continuity and innovation’. It also involves much subjectivity and can mean different things to different people because there are many ways of looking at and thinking about the same issue. In a pluralist society, ‘there will be no consensus about what is ‘the right result’. Different answers will be termed progressive or reactionary, good or bad, according to taste; but there will rarely (if ever) be any objective touchstone or correctness or wisdom’.9
This work’s understanding of legal reform relates to the notion of internal coherence and the theoretical framework of immanent critique. It interprets legal reform as a process for securing coherence between promise and performance, that is, securing internal coherence between the legislative goal of water pollution prevention and judicial interpretative outcomes in relation to the pollution offences of ‘causing’ and ‘knowingly permits’. This Chapter’s reform strategy imagines reform as a series of steps involving an ongoing process of piecemeal improvement that is in keeping with the water pollution prevention framework. It reflects on and learns and develops from the achievements to date although it recognises the importance of experimenting with new ways of problem solving without necessarily compromising the status quo. To this end, this Chapter offers one radical option for reform (legislative rewriting) and two modest reform options (application of the purposive approach to statutory interpretation, and greater support for judicial environmental education). This work thus takes both, a narrow and broad view of reform. It is guided by the belief that while reform should be simple and readily accessible, it is important to set challenging changes in order to robustly develop the environmental discipline as a whole. Put differently, the reform proposals discussed below offer an immediate short-term solution to the mismatch but has the flexibility to adapt to legal, political and social changes that may occur through the passage of time.
7.2 Redrafting Regulation 12 (1)(b) of the Environmental Permitting (England and Wales) Regulations 2016
9 F. Bennion, Statutory Interpretation, Technique of Statutory Interpretation (Longman 1990) 91.
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The terms ‘cause’, ‘knowingly’, ‘permits’, and ‘polluting matter’ were not statutorily defined or explained by the legislature. These vague and ambiguous terms were, therefore, defined by the courts. Chapters Four highlighted the merits of vague and ambiguous legislative language for internal coherence. Chapters Five suggested otherwise. Chapter Six explained the mismatch in Chapter Five by arguing that the vague and ambiguous words ‘cause’ and ‘knowingly permits’ have the potential to instigate interpretational confusions and inconsistencies that then hinders the realisation of internally coherent interpretative outcomes. The first reform proposal, therefore, suggests that one solution is in rewriting legislation.
An appropriate opportunity for the legislature to have rewritten the relevant water pollution provision was during the drafting of the Water Resources Act 1991. By then, it had become clear from cases such as Price and Wychavon that the vagueness and ambiguity surrounding the meaning of the offence to ‘cause’ the entry of matter into controlled waters had resulted in much legal confusion and inconsistency, with the consequence that the law lacked clarity for those such as judges, lawyers, enforcement officials, and those to whom it applied. The water pollution prevention provision could have been rewritten to read ‘whoever allows matter to enter controlled waters shall be guilty of an offence’. This would, therefore, replace the words that a person contravenes this provision if ‘he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter controlled waters’.
It is important that statutory provisions are easily understood. Drafters should communicate the law in a language that legal interpreters as well those to whom the law applies are able to ‘give reliable expression to the will of Parliament, and in a manner that may, as readily as is practicable, enable the public, for whom Parliament legislates, to perceive the parliamentary will with clarity, and to order its future behaviour accordingly’.10 Legislative redrafting is unlikely to address the problem of vague and ambiguous legislative language described in Section 6.3 in its entirety, but from the perspective of internal coherence it has the potential to offer judges and environmental
10 P. Mayhew ‘Can Legislation Ever be Simple, Clear and Certain?’ (1990) 11 Statute Law Review 1.
226 lawyers the ease to interpret and apply the law in a manner that was intended by the legislature. Butt echoed this argument. Plain language statutes are more efficient than traditionally worded ones because they are easier to read and queries about meaning are reduced.11 This in turn may help improve the quality of decision-making and minimise the risk of interpretational confusions and inconsistencies seen in Chapter Five.12 Thornton also argued along similar lines when he said that simple and precise language is likely to convey the intended meaning of legislation and is likely to also be understood by affected parties.13 Lord Denning has said the same: ‘[L]anguage ought to be simple and clear. There ought to be not long but not short sentences. There should be a few commas and semi-colons in sentences. There should be simple words. There should not be too much detail. One of the troubles is that with the best of motives the draftsmen try to think of every contingency . . . . It is impossible to think of everything that will happen in the future. All this ought to be in simple language expressing principles’.14
Rewriting legislation using clearer legislative language to shape legislation, minimise the prospect of interpretational confusions and inconsistencies, and convey the legislative message underpinning the statutory provision, also broadly endorses the plain legal language movement. This movement advocated that legal documents – whether they be contracts, deeds or statutes – should be drafted in a clear and direct manner.15 While there is no universal definition of plain language, a communication can constitute ‘plain language’ if it meets the needs of its audience by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it’.16 Redish described plain language is that which is straightforward and unadorned with archaic, multi syllabic words and majestic turns of phrase that even educated readers cannot understand.17 Eagleson similarly
11 P. Butt, ‘Modern Legal Drafting’ (2002) 23 (1) Statute Law Review 12, 21. 12 See Scottish Government, ‘Drafting Legislation in Plain Language’
227 asserted that plain language avoids obscurity, inflated vocabulary, and convoluted sentence structure.18 In short, the plain language movement can promote the concept of internal coherence if legislative provisions are drafted in simple terms, avoids archaic language, uses shorter sentences, and provides legal definitions or descriptions of key words used in legislation.
The plain legal language movement was hugely influential first in 1970s United States and then in other English-speaking countries such as Canada, United Kingdom, Australia and New Zealand, and then finally around the world. Post-apartheid South Africa began experimenting with plain language, as well as the ‘Fight the Fog’ campaign among translators and drafters of the European Union. In the UK, both in Scotland and in Westminster, a marked shift towards plainer legislative drafting is undeniable.19 Butt explains how surveys of American judges have shown that over 80% would prefer to see pleadings in plain language if they were given the choice. No similar surveys have been done of English or Australian judges but these two jurisdictions have recently shown increased condemnation of convoluted and unclear legal drafting, describing such materials as ‘botched’, ‘half-baked’, ‘cobbled-together’, ‘doubtful’, ‘incomprehensible gobbledegook’ and ‘singularly inelegant’.20 At the same time, however, Butt recognises that the plain legislative language carries several potential pitfalls. This includes ‘complexity’ (complex concepts require complex language), ‘judges and tradition’ (judges prefer the ‘traditional’ style of legal drafting, and ‘safety’ (many phrases in statutes and various other legal documents have judicially defined meanings, so to substitute it with a modern word is to lose the benefit of the judicial definition where the phrase may have to be re-defined, perhaps through litigation). Valdovinos adds to this by suggesting that plain language is not ‘a romantic idea or a passing fad, but a permanent cultural and paradigm shift’ where there is a struggle with scepticism, resistance to change, and persuading politicians who prefer monumental projects with high political value to the small details that distinguish a civilised and educated society.21
18 See R. Eagleson, ‘Writing in Plain English’ (Australian Government Publishing Service, Canberra, 1990). 19 C. Williams, ‘Changing with the Times: The Evolution of Plain Language in the Legal Sphere’ (2015) 28 Alicante Journal of English Studies, 183, 185. 20 See P. Butt, ‘Modern Legal Drafting’ (2002) 23 (1) Statute Law Review 12, 21. 21 C. Valdovinos, ‘Advocating Plain Language’ (2010) 64 Clarity 40, 41.
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This section has suggested that legislative drafters should care about legislative language if they are to help judges obtain a clearer understanding of the law and thus support legislative interpretations that best serve the purpose for which the legislation was introduced. Evidently, this reform proposal has focused on the law drafter to bring the desired change of promoting internal coherence between law in books and law in action. In doing so, this Chapter has indicated that the task of adapting the law to fit the fast- changing social, economic and environmental demands is not the sole task of the judge. The ability of the legal system to promote coherence also rests on legal drafters too.
The following two proposals (purposive approach to statutory interpretation and environmental judicial education) underline the centrality of judges in promoting coherence between legislative ideals and interpretative outcomes. These proposals should promote the realisation of legislative goals by addressing the explanations in Chapter Six as to vague and ambiguous legal language and the varying implications for internal coherence brought about by the contrasting approaches to statutory interpretation.
7.3 The Purposive Approach to Statutory Interpretation: A Continued Judicial Commitment
Chapters Four and Five suggested that the application of the purposive approach to statutory interpretation helped promote the goal of water pollution prevention. Chapter Six highlighted some merits of the literal approach to statutory interpretation. This Chapter advocates the merits of the (continued) application of the purposive approach to achieve internal coherence. This section first explains the domestic and European support for the purposive approach to statutory interpretation in order to explain its value within the English legal system and why this then lends itself well to this work’s argument in support of the purposive interpretations of water (and environmental) laws. This section then highlights some potential strengths and limits of the purposive interpretative approach.
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There has been much support for the purposive approach to statutory interpretation at domestic and European level. For example, Viscount Simonds in Attorney-General v Prince Ernest Augustus of Hanover argued that words, particularly general words, cannot be read in isolation because ‘their colour and content are derived from their context’, where ‘context’ was defined in its widest sense to include its preamble, the existing state of the law, and the mischief that the statute intended to remedy.22 Lord Reid in Stenhouse Holdings v IRC similarly claimed that the objective of statutory interpretation must be to find legislative intention because strict literal interpretations can often lead to a result that cannot really have been intended.23 Lord Denning, a firm supporter of the purposive approach, further argued in Magor and St Mellons Rural District Council v Newport Borough Council24 and Saarland v. Minister for Industry25 that statutory interpretation is about deciphering Parliamentary intention by unashamedly filling in the gaps and making sense of the enactment. Further support for the purposive approach is in the words of Lord Diplock in Jones v Wrotham Park Settled Estates: ‘My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act’.26 In coming to this conclusion, Lord Diplock had relied on the famous dictum of Lord Denning in Seaford Court Estates Ltd. v Asher: ‘A judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases’.27 Indeed, these judicial sentiments were recently affirmed and summarised by Lord Griffith in Pepper (HM Inspector of Taxes) v Hart and others when he said that the days of the strict and literal legal interpretations have passed and
22 [1957] AC 436, 461. 23 [1972] AC 661. 24 [1951] 2 All ER 839. 25 [1988] ECR. 5013, 5042. 26 [1979] 1 All ER 286. 27 [1974] 1 KB 481.
230 it is, therefore, necessary to give effect to the ‘true purpose of legislation’ by looking at the bearing that extraneous materials have upon the legislative background.28
In 1965 the Law Commission for England and Wales and the Scottish Law Commission expressed concern about the state of the law of statutory interpretation namely, the various approaches to statutory interpretation were reasonably clear but were often difficult to apply.29 The Commissions subsequently commenced a joint inquiry into the rules for statutory interpretation to examine these and other related issues. The joint report was critical of the literal, golden and mischief rules mainly because they were contradictory and ambiguous. They instead preferred the ‘alternative tradition’ on the basis that the ultimate function of the court is to ‘emphasise the importance in the interpretation of a provision of [and] the general legislative purpose underlying it’.30 It recommended a construction that promoted the general legislative purpose, describing as inappropriate the excessive focus on legislative words without recourse to their context (literalism), especially in situations where the legislator had in contemplation specific facts giving rise to the question of whether the words of the provision ought to be applied to cover the fact.31 The Commissions’ report was presented to the United Kingdom Parliament but its recommendations were not implemented immediately. In 1975, the report was reviewed by the Renton Committee on the Preparation of Legislation which noted several criticisms that had been put before it. The Committee raised doubts about whether the correct purpose had been identified but, on the whole, concluded in favour of the enactment of the purpose rule, though its reasons were not fully explained.
The purposive approach gained yet more favour after the United Kingdom became a member state of the European Economic Community in 1973. Under the European
28 [1993] AC 593. See: A. Kavanagh, ‘Pepper v Hart and Matters of Constitutional Principle’ (2005) 121 Law Quarterly Review 98; S. Menon, ‘The Interpretation of Documents: Saying What they Mean or Meaning What They Say’ (2014) Sing. L. Review 32; and J. Steyn, ‘Pepper v Hart: A Re-Examination’ (2001) 21 (1) Oxford Journal of Legal Studies 59. 29 The Law Commission and the Scottish Law Commission, The Interpretation of Statutes (Law Com. No. 21, 1969). 30 ibid, Para 29. 31 Above n. 29.
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Communities Act 1972, domestic courts were under ‘a duty to give legal effect to EEC Treaty provisions or Community Instruments [and] must follow the same principles of interpretation as would the European Court at Luxembourg and therefore, must look to ‘the wording and spirit of the Treaty and gain inspiration from it’.32
The teleological approach which is employed by the Court of Justice of the European Union validates the purposive approach to statutory interpretation because it believes that the object of statutory interpretation lies in the true intention of the lawmakers, to secure interpretations best suited to achieving legislative objectives. Lord Denning explained how European judges follow the schematic and teleological method of interpretation. This means that judges go ‘by the design or purpose behind it. When they come upon a situation which is to their minds within the spirit – but not the letter – of the legislation, they solve the problem by looking at the design and purpose of the legislature – at the effect it was sought to achieve. They then interpret the legislation to produce the desired effect. This means they fill in the gaps, quite unashamedly, without hesitation’.33 The same was said by Lord Renton: ‘[U]nder the European Communities Act 1972, our courts have a duty to give legal effect to EEC Treaty provisions or Community Instruments [and] must follow the same principles of interpretation as would the European Court at Luxembourg and therefore, must look to the wording and spirit of the Treaty and gain inspiration from it’.34 Of course, the purposive approach to statutory interpretation is necessary for the interpretation of European rather than domestic laws because the former is applied in many different countries with many different languages; the literal interpretation of which would lead to inconsistent interpretations and application of the law amongst the many languages adopted by the nations.35
32 The RT Hon. Lord Renton QC, ‘Current Drafting and Problems in the United Kingdom’ (1990) 11 Statute Law Review 11, 15. 33 James Buchannan & Co. Ltd. v Babco Forwarding & Shipping (UK) Ltd [1977] 2 WLR 107, 112. 34 Above n. 32. 35 CILFIT v Ministry of Health) (1982) Case 283/81.
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The (erratic) rise of the purposive approach lends itself well to this Chapter’s support for this interpretative approach in generating internally coherent interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’. The purposive approach reminds judges to keep in mind what it is that the legislative provision was and is trying to further, particularly when judges are faced with conflicting authorities or difficult interpretative questions as for example seen in cases such Empress Car Company (Abertillery) Ltd. The purposive approach also allows judges to legitimately develop the law to be in line with what they interpret Parliamentary intention to be, especially when dealing with situations not necessarily foreseen by Parliament. The interpretative freedom that is consequently granted by the purposive approach to judges reduces the likelihood of the courts producing narrow legal principles where only very specific acts (such as the accused being seen engaging in water discharge activities and actively turning on a tap or doing something similar) would constitute a breach. It avoids ‘a myopic attention to words’ which is ‘blind to the wider purpose’.36 The purposive approach to statutory interpretation also provides judges with a specific sense of direction because it requires judges to focus on the end to be achieved and ascribe meaning to legislative words using an established benchmark or criteria.37 And because the purposive approach is premised on the assumption that the legislature is filled with reasonable people who will reach reasonable purposive results by following established procedures, the purposive approach appeals to key legal notions such as consistency, fairness, and internal coherence. For these reasons, the purposive approach is crucial to the realisation of internally coherent interpretative outcomes.
The purposive approach has, however, been criticised for being limited in its application. It cannot be used to make a law consistent with Parliamentary intent if Parliament has failed to effectively state that intent in the statute. Dickerson echoes this point, arguing that the idea that there is some actual or reasonably inferable legislative intent behind every statute does not mean that there is always a specific legislative intention with every
36 Professor J. Burrows ‘The Changing Approach to the Interpretation of Statutes’ (2002) 33 Victoria University Wellington Law Review 981. 37 R. G. Vaughan, ‘A Comparative Analysis of the Influence of Legislative History on Judicial Decision-Making and Legislation’ < https://mckinneylaw.iu.edu/iiclr/pdf/vol7p1.pdf> accessed 6 July 2018.
233 given provision.38 This explains why some judges and commentators have been accepting of the literal approach to statutory interpretation as explained in Section 6.4. The purposive approach can be further criticised because a judicial failure to adhere strictly to the words of the legislature could encourage judges to enter into the political arena where judges operate as law makers rather than law interpreters.39 It fails to respect the separation of powers between the legislator and the judiciary where the legislature is responsible for creating the law and the judiciary is responsible for interpreting the law. Lord Simonds in the House of Lords for example, criticised Denning for saying in the Court of Appeal in Magor and St. Mellons Rural District Council v Newport Corporation that ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis’. Lord Simonds described Denning’s approach as nothing but ‘a naked usurpation of the legislative function under the thin disguise of interpretation’ for ‘if a gap is disclosed, the remedy lies in an amending Act’.40
A further criticism of the purposive approach is located in Judge Posner’s idea of ‘imaginative reconstruction’. Judges should imagine themselves talking to the legislators at the time at which the legislation was enacted and to then reconstruct the manner in which the legislators would have answered the interpretive question using their values and concerns. The argument then is that purposivism unrealistically assumes that judges can create the historical understanding of a previous legislature when in fact historiography suggests that a present-day interpreter can never completely or accurately reconstruct past understandings. How can an interpreter know what parliamentary intention is when this question raises, as Lee says, difficulties at two levels? First, on the higher and theoretical level, it must be asked whether there is such a thing as Parliamentary intention. Secondly, on a more practical level, it may well be that statutory words did not involve an interpreter to discuss any purpose.41 Indeed,
38 R. Dickerson, The Interpretation and Application of Statutes (Little Brown 1975) 79. 39 See Lord Simonds in Magor and St. Mellons Rural District Council v Newport Corporation [1951) 2 All ER 839. See also Farrell v Alexander [1977] AC 59, 81. 40 ibid. 41 N. Lee, ‘A Purposive Approach to the Interpretation of Tax Statutes?’ (1999) 20 (2) Statute Law Review 124, 137.
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Lees’ analysis of the interpretation of environmental offences within the waste, contaminated land and habitat’s protection regime, suggested that the purposive interpretations produced an unacceptable level of uncertainty, threatened compliance with rule of law values, hindered predictability, and had wider consequences for the legal and business community.42 Lees, in proposing the development of a new framework that brings well-established principles of common law reasoning into environmental law in order to assist the courts during the interpretative process, encourages the courts to ‘move away from a teleological approach that sees the only goal of the regulations as environmental protection. Instead, a judicially developed concept of harm is utilised as a way of homogenising approaches to interpretation and developing a more certain and predictable jurisprudence without detracting from the primacy of linguistic interpretation’.43
Despite its criticisms, the purposive approach to statutory interpretation is welcomed from the perspective of internal coherence because it supports interpretations that promote the legislative goal of water pollution prevention advocated since 1876 when the water pollution offences of ‘causing’ and ‘knowingly permits’ were first introduced. This interpretative approach certifies as correct Lord Hoffmann’s ‘very wide purposive approach’ in Empress as well as Lord Salmon’s internally coherent submission in Alphacell that ‘it is of utmost public importance that our rivers should not be polluted’, and that, ‘many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate’.44 The purposive approach has, as Chapters Four and Five have shown, also been used to justify the application of legal doctrines such as vicarious and strict liability which this work argues has much potential to generate internally coherent interpretative outcomes.
The next reform proposal of judicial environmental education is akin to the purposive approach to statutory interpretation in the sense that it is concerned with changing and
42 See E. Lees, Interpreting Environmental Offences, The Need for Certainty (Hart Publishing 2015). 43 ibid, 5. 44 (1972) 2 All ER 491.
235 shaping the judicial mind-set in the disposition of environmental case law. Judicial environmental education is a useful way of promoting the purposive interpretations of environmental laws and tackling the kind of difficulties identified in Chapter Six for the mismatch. This includes the judicial dilemma of disposing of environmental case law against the paucity of environmental prosecutions, the plethora of detail and complexity surrounding environmental laws, the potential for interpretational confusions using vague and ambiguous legislative language, the trivialisation of environmental laws, and the constructive links that are created between environmental lawyers and judges during the advocacy process.45
7.4 Judicial Education: Environmental Guidelines and Training
7.4.1 Environmental Guidelines
Environmental education can be described as a process that allows judges and magistrates to explore environmental issues and engage in environmental problem solving in order to both, gain knowledge and understanding about environmental laws and also develop the skills necessary to make informed environmental decisions.46 Environmental education is different to environmental information because the latter provides facts or opinions about environmental issues whereas the former seeks to increase public awareness and knowledge about environmental matters. Environmental information does not teach individuals about critical thinking, individual problem solving and decision-making skills, but environmental education does. Environmental information may focus on particular viewpoints about particular topics, but environmental education teaches individuals how to weigh various sides of an issue through critical thinking in order to enhance their problem-solving and decision making skills.47
45 SI 2010/675. 46 United States Environmental Protection Agency, ‘What is Environmental Education?’
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Environmental guidelines have become a familiar part of environmental law and policy. Specialist bodies often prepare technical and detailed documents that draw on a broad spectrum of expertise to help companies, individuals, enforcement agencies, and the courts, respond to the changing nature of environmental laws. Guidance can take many forms and cover various aspects of environmental regulation. For example, the Environmental Permitting Guidance (2013) aimed to help those that operate and regulate facilities covered by the then Environmental Permitting (England and Wales) Regulation 2010 by explaining how the regulation should apply and how particular terms should be interpreted. The Environmental Reporting Guidelines offers guidance to companies to help comply with the greenhouse gas reporting regulation, a requirement of the Climate Change Act 2008.48 The Environmental Impact Guidance supports government departments to understand and quantify in monetary terms, where possible, the wider environmental consequences of their proposals and create a key resource for completing the wider environmental impact test in the Impact Assessment template.49
The Environmental Offence: Definitive Guideline is singled out and discussed below to provide one clear example of the value of environmental guidelines against the backdrop of the continually changing nature of environmental protection laws. The new environmental sentencing guidelines is particularly helpful in giving environmental judges a structured framework that they can navigate their way through in order to address the more complex and technical aspects of environmental sentencing. The Definitive Guideline is divided into two parts to help with the sentencing of corporations rather than individuals. For organisations, the guidelines are divided into financial bands dependent on the company turnover.50
48 Published 12 June 2013 (Updated 3 October 2013). 49 See ‘Assessing Environmental Impact: Guidance
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Messent and Nierinck explain that the application of the Definitive Guideline is starting to yield its intended goal of impact fines. The guidelines have seen ‘headline-grabbing fines for environmental offences’ and has caught the attention of the boardroom even in the absence of culpability and environmental damage.51 In January 2016, for example, Thames Water became the first company to face a £1 million fine plus costs under the new regime following discharges into the Grand Union Canal - despite the offence being relatively low on the harm and culpability scale and despite Thames Water having spent £30,000 on improvement works. The judge said that the time had come for the courts to make clear that very large organisations must produce the reforms that they say they are trying hard to achieve. Further evidence of the imposition of a higher environmental fine was in Yorkshire Water and Powerday Plc in April 2016 where both received fines of £1m for breaching its environmental permits. In December 2016, Southern Water received an unprecedented record-breaking fine of £2m after failures at its Margate waste water treatment station saw raw sewage being discharged on the Kent coast line.52
The above examples illustrate the value of environmental guidelines in helping judges reach environmental decisions using policy ideals (sentencing proportionality), preventing the personal opinions of judges entering the decision-making process, and also curtailing judicial scope to trivialise environmental wrongdoing. Environmental guidelines can also promote decision making that has a deeper and/or wider impact on the subject of environmental protection by, for example, ensuring that there is not too much emphasis on these doctrinal values at ‘one stage of the process [interpretation] whilst virtually ignoring them at others [sentencing]’.53 Messent and Nierinck also indicate that environmental guidelines can equip environmental judges with a forward looking and preventive outlook that persuades defendant environmental offenders to introduce higher standards and requirements in their business operations. As with the
51 G. Messent and J. Nierinck, ‘Environmental Sentencing Guideline has led to Headline-Grabbing Fines, Say Experts’
238 sentencing guidelines mentioned above, the guidelines may take a top-down approach where people in senior management are compelled to take effective steps to integrate environmental matters into their boardroom agendas in order to ensure that such wrongdoing does not happen again via a substantial overall improvement in their environmental performance.
The potential for environmental guidelines to promote internally coherent interpretations is there but they afford judges, either by design, or by the inherent indeterminacy of the law, a great deal of discretion. Guidelines may acquire different interpretations by different judges, especially where a legislative provision is surrounded by ambiguous or vague language. The written nature of environmental guidelines means that there is no opportunity for judges to engage in dialogue and ask ‘what do you mean?’: ‘Words are not precise instruments for conveying ideas and any written text of substance has the potential to raise problems over the meaning of the words used. Ambiguity can arise both from within words individually, from their linkage with other words and from the context in which words are used’.54 Of course, this criticism is not unique to environmental guidelines because as Section 1.5.3 said, the same can be said of very many different forms of written legal materials such as Parliamentary debates in Hansard and statutes.
7.4.2 Environmental Training
One way to counter balance some of the limitations of using environmental guidelines is to also invest in judicial training programmes under the broad umbrella of judicial environmental education. Judicial training should have one key goal - to make a student or professional into a competent, independent and impartial prosecutor or judge. These are the qualities set forth by the European Charter on the Statute for Judges.55 The idea
54 J. McGrath and I. Richardson, ‘Reading Legislation’ (2002) 33 Victoria University Wellington Law Review 1017, 1018. 55 European Charter on the Statute for Judges, DAJ/DOC (98) 23, adopted on 8-10 July 1998 by the Council
239 of judicial (environmental) training has received much national, European and international support. This therefore, lends itself well to this thesis’s argument for judicial environmental training programmes.
The notion of judicial training has gained much importance at national, European and international level. In 2006, Professor Genn was commissioned by the Judicial Studies Board (JSB - now known as the Judicial College) to develop a Framework of Judicial Abilities and Qualities of the training need of the English judiciary.56 A framework, developed through a comprehensive discussion and process that drew on more than 500 judges from District, Circuit and High Court benches, emerged as a basis for promoting all judicial training in England and Wales. The Judicial Skills and Abilities Framework, 2014, has now brought together a single set of skills and abilities, offering clear expectations common to all jurisdictions and against which judicial office-holders are selected, trained, encouraged and appraised.57 A similar idea was presented in The Council of European Union’s communication on European Judicial Training, ‘Building Trust in EU-wide Justice – A new dimension to European judicial training’. This communication promoted the notion of judicial training and mutual confidence between Member States for the efficient functioning of the European Union by presenting as its central objective half of the European legal practitioners to participate in European judicial training activities by 2020 using all available resources at local, national and European level.58
of Europe, article 1.1, at
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Judicial training has also received much support in the United States, the first common law country to adopt a system of judicial education.59 Numerous public and private institutions now offer educational programmes to state and federal judges since the legal community recognised that acting as a judge is different to that of an advocate (especially in the light of the changing nature of judicial duties), and that recent budget cuts has led to a more overt promotion of judicial education in several American jurisdictions.60 The significance of judicial training for the compliance and enforcement of environmental laws was recognised in The United Nations Environmental Programme (UNEP) when they initiated a Judges Programme to develop and implement environmental laws and promote judicial networking and sharing of legal information.61 They marked a decade of progress since 2002 (when the participants of the Global Judges Symposium on Sustainable Development and the Role of Law in South Africa organized by INECE and UNEP), emphasising the importance of judges in interpreting and enforcing national and international environmental laws when arguing that the ineffective implementation, development and enforcement of environmental law was due to a deficiency in judicial environmental knowledge, skill and information.
The national, European and international support for judicial (environmental) training supports this work’s argument for judicial environmental training to help secure internally coherent interpretative outcomes. Indeed, the many benefits of judicial education when combined does much to validate and further the concept of prevention and the goal of water pollution prevention.
The National Association of State Judicial Educators (NASJE) identified three main groups that benefit from judicial education. To the individual judge, environmental training
59 S.I. Strong, ‘Judicial Education and Regulatory Capture: Does the Current System of Educating Judges Promote a Well- Functioning Judiciary and Adequately Serve the Public Interest?’ [2015] Journal of Dispute Resolution 1,3. 60 See C. Thomas in ‘Review in Judicial Education and Training in other Jurisdictions’, 2006 at
241 ensures appropriate training to succeed in their jobs, learn from experts and from each other, and reflect on the broader landscape. To the court system, environmental training programmes can help judges acquire the necessary competencies that relate to new and changing perspectives and increase public confidence in the court system. The public also benefits from judicial training because judges are more likely to perform their jobs in a manner that better reflects the core values of the court system such as fairness, rule of law, and access to justice.62 Hammergren discusses the benefits of judicial education with reference to the wide acceptance of judicial training in USAID’s (US Agency for International Development’s) Latin American projects dealing with practical lessons on justice reform. Hammergren argues that training programmes can help judges keep abreast of new methods and changes and build a sense of solidarity and common purpose between them. This guarantees a greater sense of uniformity and predictability in decision-making, especially because such programmes are often flexible in size and resource requirements, highly visible, and less intrusive than other interventions.63
Transformative learning describes learning that leads to significant change and development than other kinds of learning, a tool by which the learner constructs new personal meaning that results in a paradigm shift where future perceptions of experiences are shaped. Key aspects of transformative learning are critical reflection and engagement in rational exchange of ideas, how learners identify and evaluate assumptions, and prior values that they bring to the learning process. In transactional learning, the focus is on what is learned. There is a temptation with judicial education to focus on transactional learning which is designed to assist judges with the most visible and important part of the judicial role of resolving cases according to law. Weatherson argues that judicial education can deliver improved outcomes because the collaboration between judges, educators and academics can offer four avenues that have the potential to unlock a transformative approach to professional change and development namely, (i) court-oriented research (ii) informing judicial education (iii) stimulating judicial
62 Above n. 60. 63 L. Hammergren, Judicial Training and Justice Reform, Center for Democracy and Governance Bureau for Global Programs, Field Support and Research U.S. Agency for International Development (August 1998) 2.
242 engagement and (iv) fostering judicial contributions to academic publications. Weatherson does, however, point out three major areas of risk that must be managed when trying to build collaborative partnerships between judges, judicial educators and the academy. This includes change management (cultural resistance to change, particularly if different judicial systems will have different attitudes to the issue of collaboration), managing expectations (the opposite extreme to change management because this involves persuading a system to accept a shift from the status quo whereas management expectation requires persuading parts of the system to recognise that the shift may not be as great as they might have hoped for), and managing confidentiality (process of collaborative partnerships poses fresh challenges to confidentiality).
The success of judicial environmental training in generating internally coherent interpretative outcomes is indeed contingent on a judicial inclination to learn, the type of training delivered, the availability of competent trainers, and the need to overcome judicial fears about their independence. Each is briefly discussed below.
Judicial environmental education relies on a judicial willingness to learn. Meaningful progress will only occur if there is a huge cultural change that sees a widespread and genuine acceptance of environmental education programmes across the judiciary. For example, in reflecting on the triumphs and trials of judicial education in the small jurisdiction of Trinidad and Tobago, Jamadar and Jardine suggested that during the formative stages there was significant enthusiasm in these jurisdictions towards the idea of establishing a culture of continuing judicial education although the enthusiasm was not unanimous. Some judges and judicial officers saw little or no value in continuing judicial education. They refused to participate in educational activities and would often turn up to training but be disengaged. Over time, it was accepted that there will always be a percentage of judges and judicial officers that will see no value in or benefit from judicial education, especially if the practice of continuing judicial education is voluntary and there are no explicit sanctions or career benefits to participation.
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The effectiveness of judicial environmental training also depends on such programmes being varied and flexible to include face-to-face and interactive classroom-led methods of communication such as lectures, seminars, conferences, small group discussions, quizzes, question and answer sessions, power point presentations and storytelling.64 The importance of active training methods was mentioned by Ronsin, that placing adult learners in situations that they will encounter in the course of their duties have proved to be effective. He used the analogy that ‘Just as a surgeon cannot master surgical technique simply by consulting books, a judge or prosecutor needs practice to learn how to conduct an examination, hold a hearing or prepare a ruling’.65 On a similar note, judicial training programmes also relies on the availability of knowledgeable and passionate trainers capable of facilitating the active engagement of intended participants to absorb (a large volume of) learning information within limited time frames. The core training offered must be by those with a clear perception of the issues and complexity that environmental judges typically face. Ideally, environmental trainers should be chosen from among the best in their profession and carefully selected by the body responsible for training, considering their knowledge of the subjects being taught and their teaching skills.66
Environmental training programmes also requires overcoming judicial fears or cynicism that such training programmes will undermine their independence.67 Malleson, for example, argued that when in 1995 Lord Mackay was asked in Parliament whether the Royal Commission’s proposal for introducing performance appraisal would be implemented, the Lord Chancellor’s Department replied by writing that, ‘The Lord Chancellor attaches the highest importance to the constitutional principal of judicial independence. He has established no procedures for monitoring the competence of the full-time judiciary’.68 Malleson describes this response as a good example of the way in
64 See above n. 59 at 9. 65 See X. Ronsin, The Principles of Judicial Training: towards international recognition? International Organization for Judicial Training (2016) Issue 5, 16. 66 Consultative Council of European Judges, Opinion No 4, CCJE (2003) Op No 4, issued 27 September 2003, 20 at
244 which performance appraisal and judicial independence are often linked in negative terms without any explanation of the exact nature of the threat posed. Strong similarly identified judicial independence as a chief ground on which the United States opposed mandatory judicial education. Judges are likely to resist anything other than purely voluntary education and training because it damages the legitimacy of the institution by diminishing their ‘prestige’ or ‘mystique’. Unsurprisingly, some US Congress members have tried to curb judicial environmental education training programmes despite such programmes taking hold in the twentieth century where judges were invited and paid to attend. A heated debate within the federal judiciary about curtailing judicial attendance at training programmes, for instance, resulted in bitter judicial exchanges where one group argued that such programmes are balanced and neutral and the other claimed that they undermine the appearance and fact of impartiality.69
Butt, like Malleson and Strong also warned that it is important to be vigilant of well- meaning initiatives (such as government imposed educational requirements) because they risk compromising and eroding judicial independence. Ideology ‘inevitably lurks just beneath the surface of much curriculum design, which means education perpetually risks favouring the value set of the program designers. So forcing judges to undergo government-built training programs would at least appear to compromise their independence’.70 Butt did, however, indicate the need for a minimum level of judicial training in order to maintain respect for the judiciary and ensure that judges earn and deserve respect to the extent that they make well-reasoned decisions that embody shared values. He posed the following hypothetical situation to explain that certain circumstances warrant judicial education:
69 See J. Resnik, ‘Composing a Judiciary: reflections on proposed reforms in the United Kingdom on how to change the voices of and the constituencies for judging’ (2004) 24 The Journal of the Society of Legal Scholars 245. 70 D. Butt, ‘Training for Judges is Not an Assault on Judicial Independence’,
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Imagine a typical judicial appointment: a good lawyer who, consistent with current professional trends, has spent a couple of decades developing an increasingly narrow expertise in one area of the law. Now imagine a typical Superior Court judge: one who in a typical year may decide sex-assault cases, child-custody cases, business disputes and medical malpractice lawsuits. After a career as a specialist lawyer, the person elevated to the bench overnight becomes a generalist judge. That transition is unmanageable without robust judicial education.71
Some may argue that judicial fears about the impact of training on their independence are overstated. Take, for example, Trinidad and Tobago. What has happened in these jurisdictions because of the introduction of judicial education programmes is a much more open and collaborative approach to the hearing and determination of court related matters – without any evidence or experience of an erosion of judicial independence. Judges and magistrates regularly collaborate and consult one another on issues of law and practice (and other matters) that confront them for determination. Indeed, judicial education in Trinidad and Tobago first began in May 1995 when Michael Anthony de la Bastide TC, PC, QC (a new Chief Justice of the Republic of Trinidad and Tobago) took office. His 1998 address stated his anxiousness to see in Trinidad and Tobago a Judicial Training Institute to provide training not only for judges but also for magistrates and court staff. Such was his commitment to continuing judicial education that de la Bastide’s 2000 annual address was able to report that the ‘nucleus of a judicial education committee has in fact been formed and has started functioning’.72
Overall, judicial environmental education does not necessarily indicate a failing judiciary or an attempt to undermine judicial independence. It has the potential to support a stronger relationship between law in books and law in action, particularly if judges must deal with serious environmental and water pollution cases. As with any reform proposal, challenges are inevitable. As regards environmental education, this includes a judicial
71 ibid. 72 Address of the Honourable Chief Justice Michael de la Bastide, 2000, see
246 reluctance to learn, the practical question of agenda setting, and the perceived risk to judicial independence.73
This Chapter has mentioned three key reform proposals of legislative rewriting, the application of the purposive approach to statutory interpretation, and judicial environmental education vis-a-vis guidelines and training. Bar the first proposal, they treat reform as an ongoing and piecemeal process that is in keeping with the existing status quo. These proposals are thus distinguished from other reform proposals which this work does not have the capacity to deal with such as a specialist environmental court in England and Wales. This is one illustration of a much broader and far-reaching approach to law reform whose impact is not solely limited to the realm of water pollution prevention.74
7.5 Chapter Summary
This Chapter has addressed the second part of stage five of immanent critique. It has suggested a variety of practical and feasible changes in order to help promote and maintain coherence between the legislative ideals and interpretative outcomes of the water pollution offences of ‘causing’ and ‘knowingly permits’. These proposals have their strengths and limitations. This thesis recognises the importance of reflection and change although there may be difficulties in persuading those that have the power to make changes to accept the need for reform. The results of incremental legal reform may be slow but has the advantage of feeding the status quo. Radical legal reform is likely to
73 See L. Armytage, ‘Educating Judges-Where to From Here?’ (2015) Journal of Dispute Resolution 168. 74 See B. J. Preston, ‘Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (2012) 29 (2) Pace Environmental Law Review 396, 406-47. See also J. M. Angstadt, ‘Securing Access to Justice through Environmental Courts and Tribunals; A case in Diversity’ (2015 - 2016) 17 Vermont Journal of Environmental Law 345; Carnworth QC, ‘Environmental Enforcement: The Need for a Specialist Court’ (1992) Journal of Planning and Environmental Law 799; M. Grant, Department of the Environment, Transport and the Regions, Environmental Court Project: Final Report, 2000; C. Warnock, ‘Reconceptualising the Role of the New Zealand Environmental Court’ (2014) 26 (3) Journal of Environmental Law’ 507; and Woolf, ‘Are the Judiciary Environmentally Myopic?’ (1992) 4 Journal of Environmental Law 1.
247 overhaul existing practices, but their introduction may produce some unforeseen consequences that compromise existing successes.
This Chapter underlines the usefulness of immanent critique in identifying, explaining and promoting coherence between the promise and performance of legislative provisions by reflecting on and critically assessing the work of legal professionals such as judges, lawyers and enforcement officials against the legislative benchmark stated by the legislature. It highlights the ability of immanent critique to show how the operation of legislative provisions can be accelerated and optimised through legal reform, offer more support for the wider adoption of policies and expected commitments, take action to address what is weak or not working, and learn from best practices and experiences in order to enhance efforts necessary to improve the status of (water and environmental) law. It is precisely these consequences that highlight the necessity the kind of research advocated in this thesis. Chapter Eight discusses the key findings and implications of this thesis. It also provides a future research agenda.
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CHAPTER EIGHT: CONCLUSION
8.1 Introduction
This thesis coined the term internal coherence to argue that the introduction of legislation is not necessarily synonymous with the realisation of desired behaviour. It is important, therefore, to investigate the actual operation of legislation with reference to their legislative goals and whether the goals are being realised in actual practice. This thesis has provided an original contribution to legal knowledge. The current literature on the general water pollution offences of ‘causing’ and ‘knowingly permits’ has neither assessed judicial interpretations of these water pollution offences with reference to their key purpose of prevention nor applied the theoretical framework of immanent critique and the black letter law approach. Section 8.2 highlights the key findings of this thesis, and section 8.3 presents a future research agenda.
8.2 Key Findings
The findings broadly support the argument in this thesis about the merits of assessing legislation using immanent critique generally and the idea of internal coherence in order to produce original critical scholarship. The five key findings mentioned in this section relate to the five aims provided in Chapter 1:
1. Critically evaluate immanent critique as a theoretical framework for examining the internal coherence of the general water pollution offences to ‘cause’ and ‘knowingly permits’ with specific reference to judicial interpretations;
2. Identify the benchmark against which the relevant pollution offences can be evaluated;
3. Analyse the relevant case law to assess evidence of internal coherence;
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4. Explain gap(s) between promise and performance; and
5. Identify possible steps for maintaining the relationship between the legislative intentions and interpretative outcomes of the water pollution offences of ‘causing’ and ‘knowingly permits’.
Finding 1: a review of historical material, such as Parliamentary debates and newspaper articles, found that the core legislative objective underpinning the water pollution offences to ‘cause’ and ‘knowingly permits’ was and still is that of pollution prevention. Initially, the desire to prevent water pollution was based on public health ground but latterly the legislature sought to protect water specifically and the environment generally as important resources that needed protection.
Finding 2: a detailed analysis of the case law which started with the leading House of Lords case of Alphacell v Woodward,1 revealed a significant variation in the judicial interpretation of ‘causing’ and ‘knowingly permits’, with a trend towards internally coherent interpretations in recent years.
Finding 3: a range of law-related factors could explain this variation including the vague and ambiguous nature of legislative terms (such as ‘cause’, ‘knowingly permits’, ‘poisonous’, ‘noxious’ and ‘polluting matter’), the role of the judge in influencing the meaning and scope of legislation, and the influence of lawyers on judicial decision- making.
Finding 4: both radical and incremental reform could potentially address this variation and promote internally coherent interpretations of the key water pollution offences of ‘causing’ and ‘knowingly permits’ water discharges. Several reform options were discussed namely rewriting the relevant pollution provision, the continued use of the purposive approach, and judicial education through environmental training.
1 [1972] AC 824.
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Finding 5: immanent critique has revealed some interesting and original insight into the role of judges in interpreting the offences of ‘causing’ or ‘knowingly permits’, and the extent to which they consider and apply the notion of internal coherence during the interpretative process. This finding strongly supports the utility and application of immanent critique to assess other aspects and dimensions of legal (and environmental) rules in order to assess the relationship between ideals and reality. These findings are discussed below:
Finding One
The benchmark in this thesis has set aside external or extrinsic norms, values, claims and beliefs that do not belong to the water pollution offences of ‘causing’ and ‘knowingly permits’ water discharges. This includes all statutes that either do not relate to water pollution prevention whatsoever or, although conscious of protecting waters from pollution, do not specifically deal with the prevention of water pollution. For example, it was clear during the mid-20th Century that many of the rivers were getting worse instead of better because local authorities responsible for the enforcement of the Rivers Prevention of Pollution Act 1876 were too fragmented and weak. The ineffective enforcement of water laws eventually led to the introduction of legislation specifically designed to deal with the enforcement and administration of water law including the Water Acts of 1945 and 1948, River Board Act 1948, Water Resources Act 1963, and the Water Act 1973. The marked decline in the productivity of salmon fisheries in many districts where rivers were polluted, particularly where the pollution was from mines, factories and gasworks, also resulted in criminal legislations specifically aimed at preventing the poisoning and/or the killing of fish life. This has included the Salmon Fisheries Act 1861 and related Acts such as the Salmon Freshwaters Fisheries Act 1923 (and the amendment Act 1929), and the Salmon and Freshwaters Fisheries Acts of 1935, 1965, 1972 and 1975. Indeed, the key goal of water pollution prevention that this thesis is concerned with stems from the Rivers Prevention of Pollution Act 1876 and has continually been endorsed and continued through various other statutes such as the Rivers (Prevention of Pollution) Acts 1951, Rivers (Prevention of Pollution) Acts 1961,
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Control of Pollution Act 1974, the Water Resources Act 1991, and now the Environmental Permitting Regulations, 2016.
Finding Two
The general water pollution offences of ‘causing’ and ‘knowingly permits’ have been in existence since 1876 but received little, if any, judicial attention until the leading internally coherent House of Lord’s case of Alphacell. Since then, the courts have had much opportunity to interpret the water pollution offence to ‘cause’ although the inconsistent and uncertain interpretations have produced varying outcomes as far as internal coherence is concerned. At one end, the narrow literal judicial interpretations of the offence to ‘cause’ meant that the cases of Price v Cromack,2 Wychavon District Council v National River’s Authority,3 Impress (Worcester) LTD v Rees,4 and National River’s Authority v Wright Engineering Co. Ltd 5 were not classed as internally coherent authorities. Yet the cases of National River’s Authority v Empress Car Company (Abertillery) Ltd 6 and National Rivers Authority v Alfred McAlpine Homes East Limited 7 did much to further the internal coherence cause because they fully satisfied the indicators by which this thesis measures internal coherence. Indeed, these internally coherent authorities have, therefore, not only served to define legislation as a dynamic and goal-orientated instrument capable of securing desired intentions but have also supported the regulatory model of command and control as an instrument by which the notion of internal coherence can be realised. The conflicting judicial interpretations of the offence of ‘causing’ water discharges have highlighted the complexity of interpreting statutes, posed the difficult yet crucial question of whether environmental laws should be interpreted using the goal orientated purposive approach, and has said much about the importance of the judge in promoting legislative objectives specifically and environmental principles such as prevention and polluter pays generally.
2 [1975] 1 WLR 988. 3 [1993] 1 WLR 125. 4 [1971] 2 All ER 357. 5 [1994] 4 All ER 281. 6 [1998] 1 All ER 481. 7 [1994] Env LR 198.
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Case law analysis revealed some interesting questions around the relationship between internal coherence and strict liability. Chapter Four argued that the doctrine of strict liability is compatible with the notion of internal coherence because strict criminal environmental liability can support the legislative goal of water pollution by condemning such wrongdoing (condemnation), eliminating the potentially complex and time- consuming task of establishing fault (ease of prosecution) and deterring water pollution (deterrence). While Chapter Four argued that the doctrine of strict liability is important to internal coherence and the goal of water pollution prevention, it recognised the difficulty of defending this relationship if operators refuse to take precautionary and preventive environmental action knowing that the court will not be sympathetic irrespective of their moral innocence or careful scrutiny of business operations to prevent environmental pollution, and/or if wrongdoers continue offending despite being aware of the fault free nature of the statutory provision. Critics may add that this work over emphasises the role of strict liability in preventing water pollution and that there are other effective ways of achieving the same such as criminal punishment involving the imposition of tougher monetary fines. Chapter Four continued the discussion by arguing that the doctrine of strict liability can be reconciled with that of vicarious liability to the extent that this doctrine also promotes a message of general deterrence where the environmental wrongdoing is deemed to be so undesirable and outrageous that it matters not that the defendant employer is held liable for the acts of his or her employee.
Finding Three
Chapter Six identified several (inter-related) factors that could have led to the variation in the judicial approaches to the interpretation of the offence to ‘cause’ and ‘knowingly permits’ water discharges namely, the vague and ambiguous legislative terms such as ‘cause’, ‘knowingly’ and ‘permits’, there being more than one approach to statutory interpretation, and the impact of advocacy on judicial decision-making. These factors also reveal that the notion of internal coherence is difficult to achieve in actual practice because several legal personnel can influence interpretative outcomes such as legal
253 drafters, judges, and enforcement officials. Indeed, if legislative measures are to achieve their intended aspirations in actual practice, it is important to promote the message of internal coherence.
Finding Four
Chapter Seven suggested that much can (and should) be done to maintain the internally coherent interpretations of the water discharge offence to ‘cause’ discussed in Chapters Four and Five. As such, Chapter Seven presented some reform proposals using the lens of internal coherence and a strategy of both, incremental and radical change involving the rewording of the said pollution provision, continued use of the purposive approach, and judicial environmental education through guidelines and training programmes. The reform proposals in Chapter Seven were in keeping with the command and control regulatory (criminal) model to which the offences of ‘causing’ and ‘knowingly permits’ subscribes to.8
Finding Five
The immanent critique of water law has provided some interesting and original insight about the relationship between law in books and law in action. This has been considered with reference to the long-established water pollution offences of ‘causing’ and
8 For further discussion on environmental regulatory instruments see: N. Gunningham and P. Grabosky, Smart Regulation, Designing Environmental Policy (Clarendon Press 1998); Sir J. Harman, ‘Environmental Regulation in the 21st Century’ (2004) 6 (3) Environmental Law Review 141; Ogus and C. Abbot, ‘Sanctions for Pollution: Do We Have the Right Regime?’ (2002) 14 (3) Journal of Environmental Law 283; V.R. Reddy, ‘Regulatory Instruments and Demand Management of Water: Potential and Prospects’ (2016) 16 Indian Water Policy at the Crossroads Volume 153; F. Ribeiro and I. Kruglianskas, ‘Principles of Environmental Regulatory Quality: A synthesis from literature review’ (2015) 96 Journal of Cleaner Production 58; C.M. Taylor. S. Pollard and A. Angus, ‘Better by Design: Business preferences for environmental regulatory reform’ (2015) 512 Science of the Total Environment 287.
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‘knowingly permits’, and in particular the extent to which judges considered and applied the legislative intention of water pollution prevention during the interpretative process. Indeed, judges enjoy much interpretative freedom to further the notion of internal coherence by, for example, supporting broad legal interpretations that include express reference to legislative purpose as well as the broader environmental landscape that support the message of environmental prevention. The immanent critique of environmental law has also provided some interesting and original insight about the merits of this theoretical framework in offering a logical basis and structure for evaluating the interpretation and application of the law. This finding strongly supports the utility of immanent critique in not only assessing other legal rules of the environmental and legal system, but in overcoming the possible barriers for the effective operation of legislation such as the lack of clarity of legislative language, the limited judicial exposure to environmental case law, the changing nature and pace of environmental law, and the trivialisation of wrongdoing by lawyers in the court room. This finding also highlights the merits of immanent critique in emphasising the importance of realistic goal setting otherwise it risks creating a legal system that never lives up to its professed promises.
8.3 Future Research: Where Next?
The immanent critique of judicial interpretations of the key water pollution offences of ‘causing’ and ‘knowingly permits’ has highlighted the necessity to understand the relationship between law in book and law in action. Through the findings of this thesis, it has been possible to provide a future research agenda that includes comparative work, empirical research, external critique, and the important judicial task of sentencing (environmental) offenders. This section of the Chapter also considers a specific limitation of this work as well as some alternative methodological approaches in order to promote critical research about ‘law in books’ and ‘law in action’.
8.3.1 Immanent Critique
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This work has illustrated the role and value of immanent critique in assessing legislation using the standards that the legislation claims to attain. Future research could continue this theme of subjecting judicial interpretations of environmental (or other areas of regulation) to immanent critique. Certainly, future researchers governed by strict word or time limits need not undertake a detailed and comprehensive application of immanent critique in the way that this work has. They can instead take advantage of the flexibility offered by immanent critique by tailoring its application to a specific objective without necessarily subjecting legislation to the same of kind of scrutiny that a fully- fledged application of immanent critique would.
8.3.2 External Critique
Future research can reflect on immanent critique to bring to light alternative forms of critique, such as external and deconstructionist critiques, which could provide new and contrasting perspectives from which to further critically understand the law and areas in need of legal intervention.9 As with immanent critique, external critique comprises of doctrinal, theoretical and descriptive elements in order to assess the relationship between legislative ideals and interpretative outcomes, but its critical enquiry is by virtue of an external benchmark. At first glance, the idea of assessing a legislative provision using external criteria seems illogical (especially when faced with the crucial question of how the external benchmark ought to be decided, how it can be decided and how it is actually decided) but this form of critique can be particularly telling about legislative benchmarks, particularly those that are underpinned by a solid and rigorous theoretical foundation capable of challenging and changing legal policies, principles and attitudes. External critique is also beneficial to countries without a particularly advanced legal system because they can use the legislative benchmarks belonging to developed countries as a guide - such as that relating to the protection of waters which are long-
9 Burbules identifies other forms of critique namely, ideology-critique; Deconstructionism; and argument from effects. See N. C. Burbules, ‘Forms of Ideology-Critique: a pedagogical perspective’ (1992) 5 (1) International Journal of Qualitative Studies in Education 7, 9.
256 established and supportive of key environmental notions such as prevention, precaution and polluter pays.
8.3.3 Comparative Research
Comparative legal research dates to Montesquieu in the early 17th Century, to the reception of Roman law into modern European legal systems, and back even further to Aristotle. Modern comparative legal research can be traced to Lambert and Saleilles’s foundation of the International Congress for Comparative Law in 1900, although some have traced it to the foundation of the French Society of Comparative Legislation and the appointment of Sir Henry Maine as a Professor of Historical and Comparative Jurisprudence in Oxford in 1869.10 The long-standing nature of comparative research is unsurprising because this research method is relatively easy to mount, flexible in terms of resource requirements, and capable of highlighting numerous ideas from numerous jurisdictions in order to compare and build on existing experiences particularly on prevalent global topics such as environmental protection. Furthermore, comparative research is less likely to incur resistance from researchers and academic audiences because as Zweigert and Kotz explain, legislators from ‘all over the world have found that on many matters good laws cannot be produced without the assistance of comparative law.’11
Future research can build on the findings of this thesis by investigating and comparing judicial decisions of European Member States within the context of water pollution prevention, and/or that of non-European jurisdictions such as America, Australia and Canada. The complexity and growth of modern legislation in advanced legal jurisdictions is of much use in further highlighting the effectiveness of immanent critique.12 When reflecting on the problems of statutory interpretation in the UK, the Law Commission, for example, cited the significance of the United States in explaining the subject of
10 N.H.D. Foster ‘Comparative Legal Studies: A Topic for the 21st Century’
257 statutory interpretation through the range of questions that have risen, the interpretation of the Constitution, the rapid development and increasingly complex society leading to immense social and economic legislation, and the development of the theories of interpretations by the courts and jurists whose writings form an important source of authority. The Law Commission explained that much can be learned from the ‘experience and theoretical analysis’ of the United States (and Civil Law countries) because the problem of statutory interpretation can be considered using four possible perspectives: (i) textual (interpretation in the light of the ordinary meaning of words and the rules of grammar); (ii) contextual (interpretation that goes beyond the dictionary and rules of grammar); (iii) teleological (interpretations that give weight due legislative purpose and objectives); and (iv) historical (interpretations that focus on the process by which the enactment became law).13
8.3.4 Empirical Research
The immanent critique of judicial interpretations of the key water pollution prevention offences of ‘causing’ and ‘knowingly permits’ has emphasised the value of library-based materials in collating the variety of data necessary to investigate and demonstrate the relationship between legislative ideals and interpretative outcomes, and providing a critical and historical perspective of the water pollution offences to help students of law and legal personnel such as environmental lawyers, judges, lawmakers, and academics to comprehensively and critically understand this area of the law. This work appreciates, however, that one key limitation of using library based materials is that this method of data collection may not provide first-hand observations and insights of court room settings in order to explain the interactions and attitudes between and amongst court room personnel, tone of speech by lawyers, court room jargon, pace at which cases are handled, and the way in which questions are posed and answered by all concerned. Future research could, therefore, however, undertake empirical research to further understand this subject area, to use this thesis as a springboard for the empirical analysis
13 ibid, Paragraphs 17-18.
258 of the internal coherence of judicial decision-making within the context of environmental law.14
The final aspect for a future research agenda relates to the substantive legal topics raised in this thesis.
8.3.5 Environmental Sentencing
Chapter Six touched on the issue of environmental sentencing when explaining the mismatch between the legislative ideals and interpretative outcomes pertaining to the offences of ‘causing’ and ‘knowingly permits’. Future research can build on this topic in three key ways. Firstly, it can identify and assess the environmental sentencing practices in various jurisdictions such as mandatory minimum sentencing in Canada,15 sentencing information systems in Ireland,16 the numerical model in Minnesota,17 and the notion of sentencing proportionality in England and Wales.
Secondly, future research could consider the future role of custodial sentences within the environmental context, particularly in the light of the recent introduction of the civil sanctions. Imprisonment is incredibly expensive for society and is harsh and degrading for the convicted. Yet it can instil fear in those that may otherwise be tempted to contravene environmental laws, prevent environmental offenders from passing their punishment onto others as they could otherwise with monetary fines, and remove the convicted from a society where liberty is so intensely and universally valued. Indeed, the introduction of civil environmental sanctions raises interesting questions about the future of environmental sentencing. Finally, future research can focus on the recent introduction of the new Environmental Offences Definitive Guideline which was introduced after the Sentencing Council received several requests from those such as
14 J.G. Getman, ‘Contributions of Empirical Data to Legal Research’ [1985] Journal of Legal Education, 489. 15 See ‘Mandatory Minimum Sentences’ at
259 the National Fly Tipping Prevention Group and the Environment Agency to establish environmental sentencing guidelines. The Sentencing Council agreed on the need for improved guidance by means of sentencing guidelines following some concerns relating to sentencing inconsistency, and the level of fines failing to both, deter environmental offending and reflect the seriousness of environmental wrongdoing. Future research could explore the practical operation of the Definitive Guidelines by querying its ability to meet its intended objective of punishment that is proportionate to the defendant’s financial means.
Specialist bodies often prepare technical and detailed documents involving a broad spectrum of expertise to help companies, individuals, enforcement agencies and the courts to respond to frequent changes in environmental laws. It is worth investigating the practical application and operation of the Definitive Guidelines in the light of Chapter Seven’s suggestion that environmental guidelines have become a familiar part of environmental law and policy. Furthermore, the idea of linking the severity of the punishment to both, the seriousness of the environmental crime and the financial position of the defendant is broadly in keeping with the internally coherent judicial interpretative attitude of ‘cause’. Further research on the sentencing of environmental offenders could help understand the inconsistency brought about by the leniency in the sentencing of environmental offenders and highlight the idea of sentencing proportionality in raising the baseline of environmental sentencing. Indeed, many jurisdictions have validated this idea of sentencing proportionality. The Australian High Court in Veen (No2) went so far as to stamp the principle of proportionality as an aim of sentencing.18 R v Scott stated that ‘there is a fundamental and immutable principle of sentencing’ that there must be ‘a reasonable proportionality between the sentence passed and the circumstances of the crime committed’.19
8.4 CONCLUSION
18 (1988) HCA 14. 19 (2005) NSWCCA, 152.
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An assessment of judicial interpretations of the general water pollution offences of ‘causing’ and ‘knowingly permits’ found in Regulation 12 (1)(b) of the Environmental Permitting Regulations - using the theoretical framework of immanent critique - has defined the problem to be addressed (water pollution), the type of factors that provide a catalyst for legal action (discharges from business/manufacturing organisations), and the various perspectives (such as the social and political) that have shaped the nature and scope of this important legislative provision in protecting controlled waters from water discharges. The immanent critique of the water pollution offences to ‘cause’ and ‘knowingly permits’ informs the originality of this thesis. It identifies a range of information that existing literatures do not deal with including the legislative history, purpose and rationale of the offence, the historical and evolution of the meaning and scope of ‘cause’ and ‘knowingly permits’, and the proposals for reform using the specific lens of internal coherence.
This thesis has highlighted the instrumental role played by immanent critique in monitoring and assessing the extent to which legislative provisions achieve their stated goals and in moving an ideal into reality. It explains why the effectiveness of the legal system can depend on the implementation and monitoring of wider notions such as internal coherence, reflection, and reform. Immanent critique has an important role in the future development of the legal system, but it has a particularly important role to play in promoting and developing the maturity of environmental scholarship. Indeed, environmental law now comprises of many promises for the future of environmental protection. The time has certainly come for academics to evaluate how far these promises are being fulfilled in actual practice.
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