Division 4 of Part IX of the Environment Act 2000 covers who prosecutes, where, how documents are proved, and what a court can order once a conviction is entered.
Section 124 — who prosecutes, and where
| Where the offence provides a maximum monetary penalty, for a person other than a corporation, of | Prosecuted |
|---|---|
| K20,000 or less | Before a Principal Magistrate |
| K50,000 | In the District Court |
| Any other case | In the National Court |
The threshold is set by the maximum for a non-corporate offender, whoever is actually charged. So the serious offences — causing serious environmental harm (K125,000), failing to comply with an Environment Protection Order or a Clean-up Order (K125,000), and operating on a suspended permit (K125,000) — go to the National Court.
The Director or an authorised officer may, after consultation with the Public Prosecutor, lay an information and institute prosecutions for offences under this Act.
Consultation with the Public Prosecutor is required, but the prosecution is instituted by the Director or officer. This complements section 16(1)(e), which makes enforcement and the institution of proceedings a function of the Director.
Section 125 — service of orders and notices
(a) by delivering it personally;
(b) by leaving it at the person’s place of residence or business premises with someone apparently over the age of 16;
(c) for a permit holder — by posting it to the last known address provided to the Director, or by facsimile to the last facsimile number provided; or
(d) for a corporation — by serving it at, or posting it to, its registered office.
Paragraph (c) allows service on a permit holder at the last address or fax number provided to the Director. An order posted to an address you have stopped using is validly served. Time limits — the 21 days for a section 68 review, the show-cause period under section 72 — will run from that service.
Notify the Director in writing whenever the address changes, and keep the acknowledgement.
Section 126 — liability of directors and executive officers
“Executive officer” means a member of the governing body of a corporation, or a senior manager responsible for the activities governed by this Act.
(2) A corporation’s executive officers and directors shall ensure that the corporation complies with this Act.
(3) Where a corporation commits an offence, each director and executive officer who has (a) aided, abetted, counselled or procured the contravention, or (b) been knowingly concerned in, or party to, it, is also guilty of an offence of failing to ensure the corporation complied.
It is a defence for the officer or director to prove that:
(a) he was not in a position to influence and control the conduct of the corporation in relation to the offence; or
(b) if he was, he took reasonable steps to attempt to ensure the corporation complied.
A standing environmental item on the board agenda; regular compliance reporting against permit conditions; a register of permits and expiry dates; internal audit under section 74; a documented incident and section 8 notification procedure; adequate budget for monitoring and rehabilitation; and prompt action on non-compliance. Minute all of it — the defence requires proof.
Section 127 — the evidentiary shortcuts
| Provision | Effect |
|---|---|
| 127(2) | An authorised officer making a technical assessment or recording monitoring data, and an analyst conducting an analysis, shall prepare, sign and date a certificate, report or statement and deliver it to the Director |
| 127(3) | A certificate executed by the Director about a permit, an appointment, a delegation, a notice, order, requirement, direction, declaration or determination, any other decision, or the receipt or non-receipt of a notice or report, is proof in the absence of proof to the contrary |
| 127(4) | A certified extract of the Register containing a decision or approval of the Minister, or a recommendation, referral or decision of the Council, is proof in the absence of proof to the contrary |
| 127(5) | A party relying on a certificate of analysis or an officer’s report must serve a copy with the summons |
| 127(6) | Once so served, it is admissible unless the defendant, not later than five days before the hearing, serves written notice requiring the analyst or officer to be called to give evidence |
| 127(7) | Such a certificate, report or statement is sufficient evidence of the matters in it |
| 127(8) | Any instrument, equipment or installation used by an officer or analyst is taken to be accurate in the absence of evidence to the contrary |
| 127(9) | In a costs recovery proceeding, a certificate by the Director as to the costs incurred and the way and purpose of them is evidence of those matters |
Under section 127(6), a certificate of analysis or an officer’s report goes into evidence as sufficient proof unless the defendant serves written notice not later than five days before the hearing requiring the analyst or officer to attend.
If the sampling, chain of custody, method or calculation is in issue, serve that notice. Miss the five days and the certificate stands, and section 127(8) presumes the equipment accurate.
Sections 128 to 130 — what a court can order on conviction
The court may, in addition to the penalty, order forfeiture of property including machinery or equipment retained as evidence, which then becomes the property of the Authority and may be retained, leased or sold by tender.
But first the court must make reasonable enquiries as to ownership, and may only order forfeiture where the owner cannot be found, or the convicted person is the owner and the property was used in committing the offence.
Where a person is convicted and, as a direct consequence, any other person (including the State) has suffered damage or injury or incurred expenses, that person may apply to the Court for an award of damages — at the conclusion of the prosecution, or to the same Court at a later time.
The Court may order the defendant to: (a) pay the Director the reasonable costs of sampling, testing, inspection, measurement or analysis during the investigation; (b) pay the Director the costs of prosecuting where just; (c) pay compensation to any person who suffered loss of income, loss or damage to property, or incurred costs; (d) lodge a bond or equivalent security; and (e) take stated action to rehabilitate or restore the environment.
Any person who suffered loss of income, loss or damage to property, or costs as a direct consequence of the offence may apply for compensation in the criminal proceeding — without bringing a separate civil action, and without the cost of one.
And section 129(4) preserves everything else: nothing in this Act affects the right a person may have at law to restrain, or obtain damages in respect of, environmental harm. The common law of nuisance and negligence, and compensation under section 87, remain available.
The Court may, in addition to a penalty, order the convicted person to take stated action within a stated time to prevent the continuation or recurrence of the offence. The order may be revoked or varied on application by either party.
Failing to comply is itself an offence: a corporation up to K250,000.00; another person up to K125,000.00 or five years’ imprisonment, or both.
Practical steps
- Check jurisdiction against the section 124 thresholds.
- Check service under section 125, and when time began to run.
- Diary the defence notices — 14 days before the hearing for the section 10(2) defence (s 112), and 7 days from service for the section 111 emergency defence.
- Diary the five days under section 127(6) if you want the analyst or officer called.
- Assemble the compliance evidence for sections 10(2), 111 and 113 — each requires the defendant to prove it.
- Advise directors of the section 126 exposure and the section 126(4) defence.
- Prepare for the orders — forfeiture, damages, investigation and prosecution costs, a bond, and rehabilitation.
- Report it to the Director in writing, with dates, photographs and evidence.
- Ask about prosecution under section 124(2).
- If there is a conviction, apply under section 129 for compensation for lost income, property damage and costs — at the conclusion of the prosecution or later.
- Ask the Court for a section 129(3)(e) rehabilitation order, and for a bond under section 129(3)(d).
- Consider section 87 compensation where a permit holder is involved — and remember unpaid compensation is a ground to cancel the permit.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Environment Act 2000 — ss 8, 10, 16, 68, 72, 74, 87, 111–113, 124–131; Part IX Division 4
- Conservation and Environment Protection Authority Act 2014
- Constitution — ss 37, 176–177 (the Public Prosecutor)
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.