This article provides an overview of the common defences to environmental offences. However, this does not mean each of the defences below is available for all environmental offences.
There may also be additional defences available for specific offences not mentioned in this article.
If you have been charged with an environmental offence, we urge you to seek legal advice on your legal position and any available defences.
Emergency defence to environmental offences
For some offences, such as in relation to the unauthorised or harmful deposit, treatment or disposal of waste, it shall be a defence for a defendant to show that the offending conduct was carried out in an emergency in order to avoid danger to human health in a case where:
- They took all such steps as were reasonably practicable under the circumstances to minimise environmental pollution and protect human health.
- Full details of these actions were provided to the waste regulation authority at the earliest practicable opportunity following their occurrence.
For any queries relating to emergency defences, please contact our experts.
Reasonable excuse
Technically, ‘reasonable excuse’ is not a defence but operates as part of an offence which the prosecution must negate once properly raised by the defendant.
It is a ‘defence’ under Section 80(4), Environmental Protection Act 1990 (“EPA 1990”), to fail to comply with an abatement notice if that failure is due to some reasonable excuse.
Once the defendant meets the evidential threshold to put the issue in play, the burden returns to the prosecution to prove, to the criminal standard, the absence of a reasonable excuse.
Previous cases have indicated what may be capable of amounting to a reasonable excuse.
The ‘best practicable means’ defence
It is a defence under Section 80(7), EPA 1990, to the offence of failing to comply with an abatement notice, that the ‘best practicable means’ (often abbreviated to BPM and defined in EPA 1990, s 79(9)) were used to prevent, or to counteract the effects of the nuisance on industrial, trade or business premises.
If you think this defence could be suited to your circumstances, contact our team for guidance.
Due diligence/taking all reasonable precautions
For some environmental offences (such as Section 33(7)(a), EPA 1990), it shall be a defence to a person charged to prove that they ‘took all reasonable precautions and exercised all due diligence to avoid the commission of the offence’.
The prosecution must initially establish the offence to the criminal standard of proof.
The burden then shifts to the accused to prove the defence on the balance of probabilities (i.e., more likely than not).
The availability of this defence is fact-sensitive and turns on matters of degree; however, courts interpret it restrictively to maintain the stringent approach to liability in environmental offences.
Which defence should you use for your environmental offence?
As mentioned at the start of this article, some of the defences discussed may not be available to you, and/or there may be additional defences not covered here.
For tailored advice on the defences most suitable to your situation, please contact us and ask for James Edes.