Page 21 - Lawtext Environmental Liabilty Journal Example

88 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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applied in a relatively modest fashion. Specifically, the terms of granting discretion to Contracting Parties. With
Convention rejects the application of a strict liability respect to the most serious offences covered by Articles 2–
approach, integrating the element of mental culpability 3, the Convention lays down a general and vague
within all of the offences in Articles 2–4 (intention or requirement that these are to be punished by criminal
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negligence). In addition, it is arguable that the Convention sanctions which take into account their serious nature. No
tends to favour a reactive use of criminal law. The only specific punitive measures must be imposed, but instead
offences covered in Articles 2–3 that are required to be parties are required to make imprisonment and pecuniary
criminalised are based on actual harm having been caused sanctions ‘available’ as possible outcomes. The Convention
or evidence being present of the defendant’s conduct in allows parties to determine whether they are to include
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question having presented a risk of serious harm. The confiscation measures or reinstatement as
requirement to criminalise based on evidence of a risk of supplementary sanctions.
serious harm admittedly reflects a precautionary approach Section II of the convention also includes various
to liability, but this is tempered by the fact that the provisions seeking to improve the management of casework
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Convention’s provisions appear to require proof by the within the territories of the Contracting Parties. Article 5
prosecuting authorities that a very high level of threat is CPECL lays down the circumstances whereby parties are
being or has been posed by the defendant’s illicit activities. required in principle to accept jurisdiction over criminal
Moreover, the conduct covered by Article 4 CPECL, offences. The article adopts an approach that seeks to
recognised by the national law of parties to pose an maximise individual territorial jurisdiction of the parties.
unacceptably high risk to the environment, is not required Under Article 5(1), each party is required to accept
to be criminalised, and may be subject to other types of jurisdiction if an offence is committed either: within its
sanctions such as administrative penalties. territory; on board a ship or aircraft carrying its flag or
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With regard to the issue of scope of personal liability, registered in it; by one of its nationals if the offence is
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the Convention adopts a very flexible and mild approach punishable under the criminal law where it was committed
concerning the responsibility of corporations. Article 9(1) or if the offence is committed in a place not falling under
CPECL requires that parties are to adopt either criminal any territorial jurisdiction. Article 5(2) stipulates that
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or administrative sanctions or measures on legal persons each party is to accept jurisdiction where the offender is
on whose behalf offences under Articles 2 or 3 have been present within its territory but is not extradited to another
committed. Accordingly, not only does the Convention party as requested. A key objective underpinning Article 5
avoid imposing mandatory criminal liability on legal is to assist in minimising if not eradicating legal uncertainty
persons, it envisages that the existence of corporate liability over determining jurisdictional competence as between
is to be dependent upon the existence of proof of culpability parties in instances of cross-border environmental crime.
of an individual. The idea of imposing a stricter form of Accordingly, this treaty provision has an important bearing
liability at the corporate level as compared with individual on the issue of facilitation of cross-border cooperation. In
level is ruled out. Moreover, there is no provision for particular, Article 5(1)(a) clarifies that the so-called
corporate responsibility, criminal or otherwise, in respect principle of ubiquity is to apply in transboundary pollution
of offences covered in Article 4. By way of a declaration, cases, so that wherever a constituent element of an offence
parties are entitled fully or partially to opt out of the general or an effect occurs, that is to be considered as the place of
obligation in Article 9(1) to impose sanctions on perpetration or commission. However, the effectiveness of
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corporations. The Convention does however confirm that Article 5 is rather undermined by the fact that the
the existence of corporate liability may not be used as a Convention allows parties to opt out of its obligations. 158
defence against the prosecution of natural persons under Article 10 CPECL contains some limited obligations for
criminal law. 152 each Contracting Party to ensure that inter-institutional
As far as the general subject of sanctions is concerned, cooperation is enhanced, with a view to improving internal
the Convention is again short on detail and generous in public administrative action against environmental crime.

149 Under art 3(2) CPECL parties may restrict the criminal 153 Article 7 CPECL
penalisation of negligent acts to acts committed with ‘gross 154 See arts 6, final sentence, and 8 CPECL.
negligence’. 155 Article 5(1)(a) CPECL.
150 Selin ‘Your Money or Your Life’ (n 122) p 114. 156 Article 5(1)(b) CPECL.
151 Article 9(3) CPECL 157 Article 5(1)(c) CPECL.
152 Article 9(2) CPECL 158 Article 5(4) CPECL.

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