Beyond Judicial Sanctions: The Negative Impact of Conviction for Environmental Offences

Abstract

This article examines the extent to which the criminal sanctioning mechanism of prosecution can be relied upon to provide a sufficient deterrent in environmental regulation. The implications of criminal law enforcement of pollution controls currently extend beyond the immediate financial burden of payment of fines and legal costs. Some of the dimensions of the adverse publicity attracted by enforcement action against non-compliant operators will be assessed (such as unfavourable entries on pollution control registers and loss of patronage) in order to determine whether they live up to the need for a real and substantial deterrent. Arguably, these publicity-based aspects of deterrence lack reliability: they operate only in exceptional cases and their impact is often sporadic. While the solution to inadequate deterrents is often thought to lie in increased levels of prosecution, this article highlights the disadvantages of such an approach and explores the Agency's more sophisticated practice of strategic litigation.