The Environment Agency (EA) is an active prosecutor of small and medium-sized businesses, as well as their directors and officers.

The financial, practical and reputational damage associated with an EA prosecution is enormous. But the law on which such prosecutions are brought – particularly concerning waste disposal and exports – is often ambiguous. Partly for this reason, the EA has in recent years witnessed the collapse of a number of its prosecutions. As well as misunderstanding the law, the EA has also been criticised for paying little heed to the commercial realities of businesses targeted with a criminal investigation, but which have previously received no meaningful guidance or regulatory oversight from the EA.

If your business learns that it is subject to a criminal investigation by the EA, it is important to instruct a law firm with expertise both in EA prosecutions and the criminal law generally. At Corker Binning, we have experience of a number of high-profile EA investigations and prosecutions, including cases brought into environmental incidents including alleged water/air pollution, or cases of alleged non-compliance with waste regulations, including the storage, disposal and export of paper, plastics and metals. We are aware of the evidential issues that often arise in these cases. We have experience of using these issues to persuade the EA not to prosecute.

With the right legal advice, businesses are also frequently able to avoid prosecution by accepting a civil penalty under the Regulatory Enforcement and Sanctions Act 2009. The EA regularly uses these penalties, which include monetary penalties, variable monetary penalties, compliance notices, restoration notices, stop notices and enforcement undertakings. We negotiated one of the first enforcement undertakings for a company that breached the Transfrontier Shipment of Waste Regulations.

If a prosecution is unavoidable, we are able to draw on our daily experience of acting in all types of criminal cases in the Magistrates’ Court and Crown Court. Our advice is realistic and informed by recent developments in the law.