A crowded conference room. Prosecutors, police officers and representatives of other environmental enforcement authorities are gathering to listen to a few experts on prosecuting waste crime. One of the experts is Howard McCann – a Barrister by qualification, a Senior Lawyer at the Environment Agency in England, prosecutor and advisor on behalf of the Agency, a member of the European Network of Prosecutors for the Environment (ENPE) and a member of the High-Level Advisory Board for WasteForce Project.
Anna Nehring, WasteForce project support officer, interviewed Howard.
Howard, over 17 years of prosecuting in environmental cases means that this giant piece of law keeps no secrets from you. True or false?
False! – Howard said – the law is constantly changing. One thing I have learnt from my time practicing environmental law is to expect the unexpected and always be prepared. If you are not properly prepared then you risk losing your case.
Of course, you are a professional, so we cannot expect any other reaction to that question. Following on from your thought, when working on a case of illegal waste shipment, what would you expect more than non-compliance with the Waste Shipment Regulation only?
Believe me, you never know. Defendants can and do come up with interesting arguments, which is part and parcel of how a defence lawyer represents its client’s interests; you should expect literately anything and everything. What we try and do is make a case as simple as possible, explain the legal side in plain terms then combine this with the facts to try and make the case easier to understand.
When listening to Howard we might get a feeling that it’s so simple. One of Murphy’s laws says that ‘Professional criminals are predictable, but the world is full of amateurs’. From experience, we know that both professionals and amateurs operate on the illegal waste management market. Professionals or not, their illegal activity definitely is not victimless.
In your opinion Howard, who causes more damage for the environment – professionals or amateurs?
It depends on the kinds of waste involved and the destination of the waste. From experience, we have seen both companies and individuals involved in the export of waste. Some of these are out and out criminals, others are more opportunistic and others are companies that have fallen short of the standards expected of them as licensed operators.
Following the current global situation in the field of waste, looking at the scale of problems around e.g. plastic waste, hazardous waste, chemical waste or household waste we have been facing for last years.
Howard, would you say that illegal waste trade is a growing problem?
Definitely yes – he admitted – for sure it is a huge problem …and we have only scratched the surface, we are dealing with the tip of the iceberg. Limited resources means doing what we can within the means that we have at our disposal.
Where do you see the field that we should work on to increase our capacity to go deeper into the iceberg?
There are three things we should focus on – according to Howard – first: collaboration, second: collaboration and third: collaboration! There is usually something more behind environmental crime. In most of cases ‘the more’ is money, of course. Environmental crime can be linked to other more serious kinds of crime. Offences against the environment can be of interest to environmental authorities as well as Police, Customs and tax officials. To achieve effective enforcement of environmental crime, it is vital that all these authorities, work together in close cooperation.
Specialisation of prosecutors
As a prosecutor specialising in environmental crime, Howard has been dealing with a lot of cases in the field of illicit waste management or waste shipment. There is a reason for which one of them should specially focus our attention. This case is a great example of how the international and interinstitutional collaboration can affect the final result, but also it’s unusual regarding the court judgement.
His most successful case concerns the fraud case of Mr D. He was previously convicted of exporting hazardous waste of electrical and electronic equipment (WEEE) to West Africa. Having liquidated this company, he arranged for his nephew and a previous manager to start up a second company called TRL . While this company obtained a license to deal with WEEE under the EU WEEE Directive and local UK law, he set up a sole practice about 100m from TRL’s site to test and repair the WEEE collected by TRL. What he actually did was to falsify documents submitted by TRL claiming he had recycled over 19,000 tonnes of WEEE in 2011 for which he was paid over £2.2 million. In reality he had not recycled anything near that amount at TRL or his own business. He was convicted of fraud and sentenced to 7 ½ years in prison, a record for an environmental offence. We then pursued him for the money he made from the fraud. We cooperated with authorities in the Netherlands, Spain, Nigeria and Senegal and the court found that he had mislead us and other authorities into what he had done with his money. The court concluded he had hidden assets and if he didn’t pay back £1.3 million being part of the money he made from his illegal activities, he would serve another 9 years 4 months in jail. To date, he has paid nothing back meaning he could serve more than 16 years in prison, which is astonishing for environmental crime.
So far we have seen that convictions for environmental crime ends with sentencing on imprisonment suspended for some years. Having this in mind, we can say that the punishment in this case indeed should be called astonishing.
This short talk with Howard may bring us to some conclusions. Authorities involved across the enforcement chain have been provided with applicable legal regulations supporting them in enforcing environmental law. Of course we can argue that the regulations are or aren’t perfect, that the environmental law needs improvement or not and we should work on filling all gaps if such appear. Enforcement authorities indeed have limited resources at their disposal, as Howard said. However, perfectly structured law and unlimited resources will not get the job done. What’s the most important then? The human factor, approach of key enforcement players and their will to work in close cooperation. Even having limited resources , joint actions and willingness to collaborate may lead us deeper into the iceberg.