Use of Criminal Law to Regulate Air Pollution in The UK

Air pollution in the UK is regulated under various statutes. The question regarding their efficiency however, still remains debatable. Whilst most cases have been brought forward via the tort of nuisance, there are a few instances where individuals and companies have been prosecuted for environmental harm (including air pollution). Prosecutions for environmental harm are relatively new in England & Wales whilst compared to other aspects of Criminal law – it’s mainly due to the fact that some may not deem environmental harm to be a crime against life. According to the Department for Environment, Food & Rural Affairs: air pollution has seen a sharp decline over the past 30 years. Moreover, Nigel Hawkes has stated that: “while pollution is actually lower than it used to be, the damage it does is better quantified”. We could credit this decline to the various regulations which have been put in place making some forms of air pollution a strict liability crime. However, we still need to analyse whether it is sufficient enough to penalise corporations with monetary penalties for such crimes.

The reason why this essay is examining criminal-law relating to air pollution is due to the ongoing crisis of child asthma and some forms of air pollution are one of the main contributors to that. We will also gain a greater understanding of how and if corporations can be held accountable for criminal air pollution and whether the criminal penalties are sufficient. This essay has been structured with a doctrinal approach due to its ability to describe and interpret the law. Whilst the doctrinal approach may draw on the ‘black letter’ approach, it can also examine the law from more angles. We will mainly focus on criticism and proposing reform in this essay relating to criminal law covering air pollution in relation to the Clean Air Act 1993, Climate Change Act 2008, and whilst also covering common law which can be used when determining liability of air pollution offences.

The report ‘Air Quality in Greater Manchester’ has greatly gone into detail regarding air pollution’s effect on public health. According to the Institute for Public Policy Research (IPPR), the predicted concentration of life-years lost in Greater Manchester between 2011-2030 is around 1,638,047 (central estimate) due to anthropogenic PM2.5 and 981,519 life years lost due to Anthropogenic NO2. Moreover, air pollution is an asthma trigger as two-thirds of asthma-patients agree that poor air-quality worsens their asthma. Furthermore, Asthma UK statistics state that around 5.4 million people in the UK suffer from asthma and more than 1.1 million being treated are children. BBC has also reported on a fatal case where air pollution in London has caused a death of a child – this fatal asthma attack took the life of a nine-year-old girl named Ella and her worsening condition can be linked to the illegally high levels of air-pollution in London. In addition, Nigel Hawkes stated in his journal article that “the current limits for particulates, nitrogen dioxide and ozone should be seen as ‘the minimum expectation to protect public health’”. Whilst the UK meets all EU targets for decreasing particulate matters, it fails to reduce levels of NO2 – this has serious health effects, however they are not as well documented. In this instance, it is a must that we revise the current law on whether the current regulations regarding air pollution are strong enough to protect public health.

Illegal air pollution is mainly covered in statute therefore making it a strict liability offence. Such offences require no proof of mens rea to the aspects of actus reus as they are regulatory offences targeting corporations. From the presumptions set out in Gammon Ltd v A-G of Hong Kong [1985], offences of strict liability do not require a proof of mens rea if: the crime is regulatory (unless there is a ‘true’ crime) or; the crime is of social concern or; the wording of the Act in question indicates strict liability; or the offence results in a petty penalty.

For regulatory offences, the presumption of mens rea allows for a finding of strict liability. However, for a true crime, the presumption of mens rea would stand - as evident in Sweet v Parsley [1970]. The very same presumption can also be applied to companies causing environmental harm - as evident in Alphacell Ltd v Woodward [1972].

If the offence is of social concern, the presumption of mens rea may also be revoked. This is due to strict liability imposing high standards of care to further protect the public. A scenario which was concerned with protecting public health was evident in Callow v Tillstone [1900].

When the wording of the act indicates strict liability, the presumption of mens rea is revoked by a superior provision in statutes which do not include the requirement of mens rea. Also, if the statute does not mention the requirement of mens rea, the presumption will stand – however the courts could examine other offences which are created within the statute. This approach was evident in the case of PSGB v Storkwain Ltd [1986].

If the offence results in a minor penalty, this will show that there has been no true crime committed therefore it should be one of strict liability. This was shown in the case of R v Williams [2011] 1 WLR 588. However, it doesn’t necessarily mean that the offence is of strict liability if it does not result in a larger penalty.

Whilst there is common law covering the crime of air pollution in terms of strict liability, there are also a wide range of statutes ensuring the regulation and control of air pollution. One of the statutes covering the regulation of air pollution would be the Clean Air Act 1993. It regulates emissions from and installations of furnaces, chimneys and etc. It also allows for the creation of smoke control areas (as evident in s18 – s22). It also enforces control over certain forms of air pollution from motor fuel (s30), content of fuel (s31) and also cable burning for metal (s33) which leads to a summary conviction. S41 of the Act relates it to the Environment Protection Act 1990 to ensure that there is no contradiction between these statutes. The Clean Air Act 1993 also regulates emissions from railway engines (s43) and vessels (s44).

Environment Protection Act 1990 concerns itself with what it says on the label – the protection of the environment. It used to also concern itself with air pollution until in 1993 s85 of the Act was repealed by the Clean Air Act 1993 which now supersedes the former Act in relation to offences of air pollution.

Whilst I have only discussed two statutes which can be interpreted in a court of law to bring air polluters to justice, there are many more, such as the Control of Pollution Act 1974. It discusses the “prevention of atmospheric pollution” through s75-76, legal proceedings for offences committed under the Act within s87. In s87, it discusses criminal liability for a body corporate:

“When an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.”

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This section within the Control of Pollution Act applies the use of the identification doctrine which is where not only the corporate body will be held liable but also the persons who are the ‘directing mind and will of the company’.

A positive of applying strict liability to regulate air pollution in the UK would be that it would raise standards to protect the health and safety of the wider public. This would ensure that companies would be responsible for taking extra care in ensuring that they do not harm the public and the environment – as evident in Callow v Tillstone [1900] (protecting public health); Alphacell Ltd v Woodward [1972] (protecting the environment).

In addition, strict liability offences are easier to administer – they are often dealt with through the post which removes the need for a court hearing. Strict liability offences do not necessarily need to be enforced in courts as other enforcement agencies (such as the Environment Agency) could act as the regulators.

Furthermore, it is easier to convict offenders committing strict liability offences as they are not able to dodge the law by fabricating their state of mind. This ensures that offenders are brought to justice.

Having said that, strict liability also has its fair share of negatives. One issue with strict liability is that it may bring a sense of injustice. For example, an individual could be found liable for an offence in which they were not at fault, even if they have taken reasonable precautions – this is mainly due to the lack of any requirement for mens rea. This was evident in Callow v Tillstone [1900] (even though the defendant took all reasonable precautions to ensure that the product was safe, he was still found liable) which argues that it does not matter how diligent the defendant was in ensuring the safety of the product, all that mattered was whether a violation within the regulation was found.

Moreover, strict liability may not necessarily be a strong deterrent for these offences. If the companies do not know what kind of air pollution is not permitted, then they would not be able to take reasonable steps from preventing it. As evident in Alphacell v Woodward [1972] the defendant was not aware of the regulations and how they could have caused any legal issues.

Statutes are a fair way of regulating criminal law. They are developed by experts in related fields and approved by our elected representatives. Since they are set in stone, one cannot see a statute overturned in a court of law – therefore we could argue that this is the most efficient form of ensuring that the law cannot be shaped to favour rich corporations.

On the other hand, an issue with applying statute to crimes in relation with air pollution would be that the Clean Air Act 1993 guides the judge to issue summary convictions for air pollution offences. Furthermore, “convictions generally lead to modest fines” thus undermining the seriousness of violating the Act.

“For large businesses (with a turnover of £50m or more), the mean fine between July 2014 and December 2015 was £56,900, and the median £35,000. For very large companies, the mean was £166,200 and median £100,000.”

Corporations with a such large turnovers would not be greatly affected by such modest fines. Hence, the fines would be ineffective in ensuring that the companies comply with the air pollution regulations as Dr Michael Watson quite rightly states:

“…the penalties are unlikely to deter future offending. They usually bear little relation to either the substantial profits that can be made by those who choose to defy the law or to the environmental costs associated with their activities.”

This statement reinforces the fact that it is difficult to use current legislation as a deterrent for further air pollution offences, as the potential monetary gain to break the law outweighs the risk for corporate bodies. In fact, the penalties are so modest that the vast majority of offenders do not face prosecution. Moreover, we have seen a lack of custodial sentences for corporate minds who have committed environmental harm – hence the current statute is not effectively punishing its offenders.

The benefits and shortcomings of both the common law and statutes need to be recognised. Air pollution is a relatively newly covered issue within law, and therefore we must ensure that its laws evolve in the right direction. Firstly, we must acknowledge the benefits which can be reaped from keeping air pollution offences ones of strict liability.