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The Environment Agency (EA) needs to decide whether it is acting as a regulatory body or a prosecuting authority. This is crucial.

In most low-level non­-compliance cases, a prosecution for an environmental offence is heard by magistrates who are encouraged to treat and view "environmental crimes" as extremely serious.  The result is that they only tend to consider the defendant's ability to pay a fine, rather than weigh the complicated background to the offence.

In court the EA will say it has decided to prosecute a business so it learns the hard way and ensure there is no future environmental risk from its activities. The justices, in turn, will be encouraged by sentencing guidelines and circulars to levy large fines that will impact on the business's shareholders or proprietors.  This is all too black and white.

A prosecution is appropriate where the court has to deal with criminals who perpetrate serious and those less serious crimes - no more and no less. These are, after all, people who have deliberately and recklessly committed an offence, almost inevitably dishonestly and with premeditation.

More commonly, however, the incident arises from a mistake, an unfortunate combination of circumstances or a wholly unexpected event. This is not an environmental "crime" and, in reality; should not be seen as such. Such a case involves the contravention of regulatory mechanisms, so regulatory proceedings rather than prosecution are more appropriate. 

The paraphernalia of a prosecution, setting out the aggravating and mitigating features of the case, are not the best way to ensure better behaviour since most businesses accused of environmental offences are owned by people of good character and reputation.

I fear the Environment Agency makes decisions to prosecute not because it will ensure that the environment will be better protected but because it will meet its targets.

Voltaire's Candide comes to mind, when the eponymous hero witnesses the execution of an officer and is told "it is wise to kill an admiral from time to time to encourage the others".  There is no need to prosecute generally law-abiding businesses in order to encourage others not to harm the environment.

The Regulatory Enforcement and sanctions Act 2008 should help. It follows the Hampton Review, which concluded that regulators' penalty regimes are too cumbersome and ineffective, and the Macrory Review, which said many regulatory sanctioning regimes are over-reliant on criminal prosecution and lack scope for flexibility.

A system of fixed monetary penalty notices is intended to provide an alternative to prosecution in respect of low ­level non-compliance.

It can only be hoped that this will influence the agency's attitude in deciding whether or not to prosecute and allow proportionate, light touch regulation.  

Ian Lamond is Team Leader of the Planning Team as well as of the Environment Team.  He has particular experience of the mining and waste industries.