Criminal intent

Frank Mulholland QC summed up the state of play in simple, if somewhat unvarnished, terms. “Thankfully, we’ve moved on from the notion that environmental criminal law was really for men and women playing ring a ring o’ roses round a tree, because it’s a serious business and it’s a strategic priority for me as Lord Advocate.” Estimates that put the financial benefit in waste crime cases investigated last year at almost £30m explain his assessment.

However, Scotland’s top prosecutor is not alone in his thinking. Officials from the Scottish Environment Protection Agency (SEPA), Police Scotland, HMRC, as well as central and local government were among those gathered for Scotland’s first environmental waste crime conference the week before last. In the three years since the Environmental Crime Task Force (ECTF) launched, new legislation has passed through Holyrood in the form of the Regulatory Reform (Scotland) Act 2014; the first confiscation order under the Proceeds of Crime Act for an environmental offence has been handed down; and investigative activity has been stepped up insofar as a unit of ex-law enforcement specialists and regulators – launched by SEPA earlier this year in the form of an 18-month pilot – has secured the removal of around 20,000 tonnes of illegally disposed waste, interviewed over 200 individuals in connection with a number of environment crimes, and ensured three companies engaged in illegal waste activities have ceased trading.

Nonetheless, the waste sector in Scotland – much like throughout Europe – finds itself increasingly susceptible to those attracted by high profit margins and low risks. “In terms of environmental crime, there is clear evidence that organised crime are now diversifying and moving into that space,” says Detective Chief Superintendent John Cuddihy, head of organised crime and counter terrorism at Police Scotland. Enhanced mapping by law enforcement has seen the number of crime groups with a known involvement in environmental crime – ranging from illegal waste dumping to unsafe storage of hazardous material – more than treble in the past two years. “In addition to that, what we’re seeing is that it’s certain groups that operate within the higher echelons of criminality who are actually diversifying,” adds Cuddihy. 

More than 200 public sector organisations put contracts for waste management services, recycling, as well as residual waste treatment out to tender, though EU procurement regulations seem to be causing a headache given the reliance upon convictions in order to exclude a potential contractor. “What happens is that the standard evaluation criteria for [the] public sector – which is the same procurement for buying a pencil as it is maybe for a 25-year waste contract – is very much price driven and very much looks at the cheapest price rather than capability,” says chair of the Scottish centre of the Chartered Institution of Wastes Management, Linda Ovens. “That skews and opens up the public sector to the potential to award contracts to non-compliant or to organised crime individuals.”

The recent introduction of a standard pre-qualification questionnaire – used at the outset to examine potential suppliers’ suitability – that is then passed by local authorities to Police Scotland has been accompanied by a drop in the number of tenders being submitted, suggesting, Ovens adds, it is acting as a deterrent. Zero Waste Scotland as well as SEPA is working on a research study that will result in guidance early next year for local authorities, public bodies and resource management firms to guard against criminal interests infiltrating the procurement process. “Information-sharing protocols are improving and we are making big strides forward in that respect, but I still don’t think it’s far enough,” says John Mundell, chief executive of Inverclyde Council and Solace portfolio lead on the environment, sustainability and waste management. “We run the risk in local government, at the moment, of being challenged if we don’t award a contract on the basis of an evaluation using intelligence without doing the right things at certain times – we do run the risk of litigation from these people.”

For police, the answer lies in part in the creation of an intelligence commissioner: in effect, an independent judicial figure who would determine whether intelligence gathered on suspected organised crime groups, that the law prohibits them to share, is sufficient to stop public contracts or licenses being awarded. “The word secret should not be an inhibitor to good information exchange,” says Cuddihy. A pilot is also in the pipeline to look, within a specific geographical area, at a suite of available public sector contracts and how organised criminals attempt to involve themselves in the tendering process to see if information protocols can be strengthened. Prosecutors, meanwhile, are looking at how serious crime prevention orders can be utilised after Scotland sought to follow England and Wales in introducing the civil order which allows conditions or restrictions to be placed on the likes of an individual’s travel movements, financial property or business dealings, as well as working arrangements.

Thinking more radically, perhaps, the Lord Advocate has thrown his weight behind the notion of an environmental court. “What a powerful message that would give,” he says. “It doesn’t need to be a shiny new building with new administrators and clerks, just order the business in a particular way to give a focus on certain days to environmental crime.” Mulholland threw up a number of other suggestions, including a specialised sheriff or judge for environmental crime, a clean-up order whereby the polluter is responsible for covering the cost of restoration, as well as a publicity order in which adverts could be placed in newspapers upon convictions. 

These, however, are in many ways reactive measures. The electronic duty of care, introduced earlier this year across the UK, is designed to move waste movements away from the current paper-based system that is open to abuse, though this, as it stands, is voluntary. A step further back, SEPA’s national operations waste and enforcement manager, Willie Wilson, stresses more needs to be done about barriers to entry in the first place, in particular, the ‘fit and proper person’ test that is applied. “The Regulatory Reform Act offers some potential for us to reshape that. Now that’s still at a consultation phase and so we can’t say what it will end up being, but we have to do more to stop criminals from getting into the industry. A more robust ‘fit and proper person’ test would allow us to stop them at the gates rather than letting them into the industry, where it sometimes can then be too late and they can take hold and undertake criminal action.”