England’s Environment Agency has downgraded 93% of prosecutions for serious pollution over four years, despite recommendations from frontline staff for the perpetrators to face the highest sanction, a leaked report seen by the Guardian reveals.
Between April 2016 and December 2020, investigators within the agency gathered evidence and prepared case files on 495 serious incidents, involving the worst type of pollution of rivers and coastal waters as well as serious waste crimes, according to the internal document.
They recommended that the agency prosecute in all the cases. But the document shows that after intervention by managers just 35 cases were taken forward to prosecution, the rest being dealt with via a lower sanction such as a warning letter, or dropped all together and marked for no further action.
Officers investigating the highest categories of waste pollution, including those perpetrated by individuals involved in serious organised crime, recommended prosecution in 386 cases. But only 4% of cases were pursued, while the rest were downgraded to a caution, enforcement notice or warning letter, or marked for no further action. The scale of dropped prosecutions was revealed as the government claimed it was engaged in a crackdown on waste criminals.
When it came to investigation of serious pollution incidents in rivers and coastal waters, investigating officers said 109 cases should be prosecuted. These are likely to have involved breaches of permits by water companies leading to illegal discharges of raw sewage, as well as other serious water pollution. Only 21 cases, however, were pursued to a prosecution; just 19%.
The information supports claims from within the EA that it has been cut back to such an extent investigating pollution incidents has been deprioritised and the regulator was no longer a deterrent to polluters.
The report suggests that EA officials will be ignoring serious waste crime involving organised crime group.
Recent instructions to staff, according to a previous Guardian report, are to ignore pollution incidents that are considered lower level; so-called category 3 and 4 incidents.
But the internal report reveals that most waste offences are listed under current guidance category 3 and 4, and therefore, under the new guidance would no longer investigated, “even those that are part of major or serious operations dealing with organised crime”.
The leaked document says the agency “cannot underestimate the significance of large proportions of cat 3” for waste and water quality pollution incidents.
“These include chronic cat 3 impacts associated with priority offenders and long running high risk waste sites that can be deliberate and committed by offenders with enforcement history,” states the document.
“In many instances these are more appropriate for an upper tier [stronger enforcement] response than some cat 1 or 3, depending on circumstance,” it said.
The report suggests that one reason for the wholesale downgrading could be that the agency’s “resources and our ability to evidence offences and pursue cases to prosecution has reduced over recent years”.
Miscategorisation of pollution incidents or permit breaches as low impact when their consequences were actually high impact, is something that concerns the angling community.
Campaign group Fish Legal has details of a pollution incident in which building rubble was dumped into a tributary of the River Tamar. It was initially deemed to be category 2 and was later downgraded to category 3 without any inspection or sampling. The perpetrator was sent a warning letter.
A spokesperson for the Environment Agency said the regulator does not comment on leaked documents. However, they said it does “consider, record and prioritise all incidents – with all breaches and offences reported to us undergoing a robust initial assessment”.
They added: “We have a wide range of enforcement options, including civil sanctions, enforcement undertakings, and in some circumstances, advice and guidance. Where prosecution is appropriate, we pursue robustly and in accordance with the Code for Crown Prosecutors, which sets out that the evidence must provide a realistic prospect of securing a conviction and that a prosecution is in the public interest.”
The spokesperson added: “Over 90% of our prosecutions are successful, and recent outcomes such as the £90m fine of Southern Water Services show a clear and welcome trend towards much bigger fines against offenders in appropriate cases.”