Environmental Prosecutions and Restorative Justice
Most people will be familiar with restorative justice in the context of the criminal justice system, where it has been a feature for several years. Its application in environmental prosecutions under the Resource Management Act is less well known and understood, and we would argue that it is underutilised.
Restorative justice has features that make it well suited to environmental prosecutions because it places emphasis on addressing the harm that has occurred through a process of engagement between those most affected by the offending and the defendant.
This article provides an overview of some of the key features of the restorative justice process and discusses the impact it can have on the outcome of prosecutions under the RMA. Although there are some uncertainties with restorative justice, there are also substantial benefits that can be secured by all parties and so this option should not be overlooked by defendants that are facing prosecution under the RMA.
What is restorative justice?
Restorative Justice can be simply defined as a “recognised form of dispute resolution that views non-compliance as a violation of people and relationships and where offenders are encouraged to take responsibility for their actions in a meaningful way, by repairing the harm caused by their crime”. It involves less focus on punishment and deterrence, and places more emphasis on the needs of the victim and the affected community who take an active role in the process.
Use of restorative justice in RMA context
In 2002 the Sentencing Act was amended so that the Court is required to take into account the outcome of restorative justice processes. The Act provides for adjournments to allow restorative justice conferences to be held, for restorative justice outcomes to be implemented and for any “offer to make amends” to be taken into account on sentencing.
Despite the law change, the use of restorative justice in the context of RMA prosecutions has been relatively modest. During the period between July 2001 and September 2012 it was used on 33 occasions out of a total of 860 prosecutions. Even so, some regulators are actively seeking to utilise restorative justice in appropriate circumstances. Environment Canterbury, for example, has published guidelines regarding how it will implement use of restorative justice as part of its ‘regulatory toolbox’.
The level of compliance monitoring and enforcement activity undertaken by local authorities has substantially increased over the past 20 years. There are more prosecutions initiated and the level of fines imposed by the District Court has also generally increased. Most charges laid are successful – data collected by MfE shows a 90% conviction rate over the same period. This is largely because under the RMA it is not necessary for the prosecuting agency (usually the council) to prove that the offending was intentional; a simple mistake, careless or ignorance will be sufficient to support a conviction. Also relevant to the conviction rate is that companies, landowners and consent holders can be prosecuted for mistakes made by employees and other third parties working on site.
These circumstances paint a fairly gloomy picture for persons prosecuted under the RMA. Environmental prosecutions are expensive in monetary terms and can harm the reputation of the prosecuted company. Against this context restorative justice is an important alternative justice mechanism that can provide for improved sentencing outcomes for defendants.
When will restorative justice be appropriate?
Restorative justice will be appropriate in circumstances where the defendant accepts guilt and there is potential for the defendant to make amends, generally by some form of environmental restoration, in a manner that is supported by victims of the offending and the council. So in order for restorative justice to be successful there needs to be (a) agreement by these parties (as well as the defendant) to participate in the process and (b) support for the outcome of the restorative justice conference.
In the case of environmental prosecutions, the term “victim” is construed quite broadly to include not just the person against whom an offence is committed but also includes persons who suffer loss or damage to property, physical harm or who are disadvantaged by an offence. This means that depending upon the circumstances, the victim may be someone whose trees have been cut down, someone who has suffered headaches from odours, or a group representing the wider community (such as a residents group or hapu) whose local environment has been damaged by discharge of contaminants into a waterbody.
What is the procedure for restorative justice?
The restorative justice conference is the cornerstone of the procedure and it can be initiated by the Court, the victim, the council or the defendant. The Court proceedings are adjourned to allow the conference to occur.
Restorative justice conferences are facilitated by an independent agency. They focus on accountability and seek to repair the damage done by the offending by identifying practical measures that are within the control of the defendant to implement. Typically the conference provides an opportunity for victims to express the impact of the offending on them, to find out what happened and for the defendant to make an apology and propose methods to make amends. Once the conference is completed, the facilitator provides a report to the Court that records the events in the conference as well as any agreed outcomes or conditions.
What impact does participation in restorative justice have on the outcome?
When the matter is recalled, the restorative justice conference report is used to assist the Court to determine the appropriate sentence in the circumstances of the case. In deciding whether and to what extent any offer to make amends should be taken into account the Court must consider (a) whether it was genuine and capable of fulfilment, and (b) whether it has been accepted by the victim as making amends for the wrong. Each case must be considered in the context of its own facts and so there are no hard and fast rules about what sentencing outcomes will result when restorative justice is implemented.
Where the restorative justice conference is successful the council and the defendant will often present a joint view to the Court about the appropriate sentence. This may range from a decision by the council to withdraw the charges altogether (similar to diversion in the criminal context for minor offences by first time offenders), discharge without or without conviction, to reduction in the financial penalty imposed by the Court.
The Court has held that there is nothing wrong with parties making a joint proposal for a sentence by advancing what is in effect a negotiated settlement. However this will be looked at quite closely by the Court as it needs to be satisfied that the agreed settlement-
- has been reached on a principled basis
- has been arrived at on a transparent basis
- has some relationship to the potential fine which might have otherwise been incurred.
What are the pros and cons?
The benefits of restorative justice for victims and the environment are fairly straightforward. They include vindication for victims by providing a forum where the defendant acknowledges they have wronged the victim, and the victim’s needs are given some attention by the defendant. The natural environment benefits because the defendant’s commitment to make amends typically involves restoration of the natural environment which has been damaged.
For the defendant, the benefits are less obvious but still important. Restorative justice provides an opportunity for the defendant to have greater influence over the sentencing process by active engagement with those that are most affected by the offending. To be effective, such engagement must be genuine with a high level of commitment to the process and the outcome. When this occurs, victims (and the council) will often be willing to support practical measures to restore the environmental harm caused by the defendant. This can translate into a substantially less punitive sentence than would otherwise have been imposed by the Court.
The restorative justice conference also provides an opportunity for the defendant to restore their reputation within the community by allowing them to respond in a manner that is consistent with personal or corporate values of accountability, transparency and partnership with the community. In some cases this can significantly influence the way in which the defendant’s conduct is reported in the media. For some defendants, reputation damage arising from adverse media coverage is more important than the financial penalty that the Court may impose.
The disadvantages of restorative justice are that it is not feasible in every case, and the outcomes are not certain. For example, some parties simply may not agree to participate, or the parties may not be able to reach agreement at the restorative justice conference. Even if they can, the Court may not accept the joint proposal for sentencing promoted by the council and the defendant. Also, the process is neither easy nor cheap. It requires personal and financial commitment by the defendant to be successful.
Some public indemnity insurance policies provide cover to meet the financial cost of environmental restoration for damage caused by the insured. Where these policies are available, they can substantially reduce costs to the defendant arising from restorative justice commitments. Companies that work in sectors where there is risk of environmental prosecution should check whether their insurance policy provides this type of cover.
In many respects, restorative justice presents as a ‘win-win’ sentencing option that can deliver substantial benefits to all participants. It is not a soft option for defendants. However it can provide a positive outcome that addresses the harm caused by the offending and may substantially reduce the penalty that would otherwise be imposed by the Court. In suitable cases it can result in withdrawal of the charges entirely. Restorative justice also provides an opportunity for companies to restore their reputation within the affected community.
Consequently use of restorative justice in the sentencing process under the RMA can provide beneficial outcomes for victims, the environment and the defendant that would not otherwise be available. For defendants, there are costs and uncertainty associated with this procedure however in our view these will often be outweighed by the benefits.
In the Canterbury region, ECan has signalled its interest in supporting restorative justice. Our experience is that ECan is willing to explore its application on a case by case basis. Overall, it would appear that there is considerable scope for greater use of this alternative sentencing option than has occurred to date.
Disclaimer: This is a brief summary for information purposes only and is not legal advice
Posted on Tuesday 3rd May, 2016 at 05:04 pm