Use of enforcement undertakings is on the rise

• United Kingdom

• Environment

24-06-2019

Enforcement undertakings, a form of civil sanction available to the Environment Agency, Natural England and Natural Resources Wales, are voluntary binding agreements which can be offered to a regulator where there are reasonable grounds to consider that an offence has been committed. The benefits of accepting an enforcement undertaking over prosecution are significant for organisations as the former avoids costly court time and some of the adverse publicity associated with a prosecution, as well as avoiding a criminal record.

Statistics published by the Environment Agency show that the use of enforcement undertakings over prosecution is on the rise, with approximately 44 accepted in the period 20 October 2018 to 22 May 2019 (and including some previously unpublished from 1 June 2018). This is likely in part due to the number of offences for which enforcement undertakings can be considered being widened but also due to companies becoming more sophisticated about the availability of this sanction.

Whilst the amounts donated to charity by business vary significantly depending on the nature of the offending, the highest financial contribution to charity as a result of a single breach was £511,000, together with full costs payable to the Environment Agency. In total for this period, fines totalled over £3.7 million with the majority falling to water companies.

As the appetite of the Environment Agency to pursue civil sanctions increases, companies should be aware of the benefits of a civil sanction over criminal prosecution in the event of a breach.