Interaction Between the Regulator and Practitioners in the Field of Environmental Investigations

Prosecution of environmental offences almost invariably involves the presentation of complex evidence to a court, dealing with the causation of an offence, and its implications, in terms of harm or potential for harm to the environment, to flora and fauna, and to human health. As a regulator the Environment Agency issues environmental permits and then goes on to monitor, investigate and prosecute breaches. Additionally the Agency prosecutes environmental offences where there may be whole scale illegal activity outside of the regulatory regime. The Agency relies upon evidence to set its permits and subsequently to justify interventions in situations where operations may have an adverse impact on the environment or are already having such effects. The importance of sound, reliable scientific evidence cannot be understated for a regulator. In cases brought to court by the Agency and in other challenges relating to the potential for harm associated with a proposed operation, the use of expert evidence and expert witnesses is crucial. Cases may require interpretation of the analysis of water and waste samples and what these mean in terms of environmental impact. Expert witnesses are frequently called upon to advise during investigations and to give evidence on complex issues of science to a court or tribunal. The Environment Agency utilises the services of its own National Laboratory Service in most cases but has additionally used chemical fingerprinting of petroleum products in the case which followed the explosion at the Buncefield Oil Storage Terminal and in other cases relating to losses from underground petrol and diesel storage facilities. Cases have been brought by the Agency in relation to the loss of pesticides, agricultural fertilisers, food products and chemicals such as TBT. The impacts on human health but also on fish and shellfish must be assessed and verified. Scientific evidence may be required on effects of dilution, volatilisation and mixing. Difficult explanations of complex mechanisms to non-scientists may be required. Accordingly a good relationship between the regulator and the scientist is key and the interaction between different professionals, who may not always speak a common language, will be discussed, with case related example