Criminal law as a preventative tool of environmental regulation: compliance versus deterrence

Abstract

The effective enforcement of environmental law is an issue which continues to engender considerable academic debate. The conclusions that may be drawn from such debate will have implications not only for the future of environmental law but also the wider regulatory reform agenda. This article commences with several noncontentious propositions. First, any regulatory regime ought to place considerable emphasis on preventing harm; within the context of environmental law, this view is encapsulated by the preventative principle. Secondly, one may be tempted to treat the criminal law as a purely reactive or curative mechanism were it not for the deterrent effect associated with the imposition of criminal sanctions. Therefore, the initial premise is that if environmental law is to become more preventative in scope, policymakers ought to consider how the deterrent effect of environmental criminal law may be bolstered. Academic publications and official reports are replete with assertions that the fines imposed by the courts for environmental crime are lamentably low. A preoccupation with the level of fine may lead one to overlook the fundamental importance of the likelihood of apprehension as an essential ingredient of the deterrence formula. Mainstream criminological discourse provides clear evidence that the probability of apprehension has a greater influence on deterrence than severity of sanction. In this context, the enforcement style adopted by the relevant enforcement agency is crucial; in particular, whether the style adopted augments the perception that apprehension is more probable. This article proceeds to argue that many of the assumptions on which the compliance style is based may be questioned, if not totally undermined. It is contended that a transition from compliance-orientated enforcement towards an approach more focused on deterrence has the potential to enhance the deterrent, and by extension the preventative effect, of environmental criminal law.