This week the EU’s revised Directive on protection of the environment through criminal law (2024/1203) (the “Directive”) came into force. The Directive extends the list of criminal environmental offences and seeks to strengthen enforcement in relation to environmental crime, addressing what were considered shortcomings regarding the effectiveness of environmental criminal law. EU Member states (with the exception of Ireland and Denmark) have 2 years to implement the Directive into national law. 

This marks a key milestone against a backdrop of increasing focus in the UK, Europe and internationally on facilitating protection of the environment through the criminal law. 

The Directive

The Directive establishes minimum rules with regards to the definition of criminal offences, introducing a revised list of environmental crimes, including:

  • Serious breaches of EU chemicals and mercury legislation;
  • Serious breaches of legislation on invasive alien species;
  • Unlawful water abstraction; and
  • Unlawful timber trafficking.

The concept of a qualified offence has also been introduced. A qualified offence is intended to apply when an environmental crime referred to in the Directive is intentionally committed and causes the destruction of or irreversible or long-lasting damage to the environment.[1] It is expected that this will include incidents with large scale environmental impacts such as forest fires and widespread water, air or soil pollution. In the recitals for the Directive, it is noted that qualified offences may encompass conduct comparable to ‘ecocide’, which is particularly interesting given the current global discussions on this concept (which we discuss further below). 

Minimum rules on penalties have also been introduced in order to protect the environment more effectively, as well as measures to prevent and combat environmental crime.

The Directive applies to individuals and legal persons. For qualified offences, the Directive introduces a prison sentence of at least eight years for individuals. For companies, the Directive introduces a fine of at least 5% of the total worldwide turnover up to a cap of 40,000 euros. The aim of these unified penalties is to act as a deterrent, although some commentary suggests that the maximum cap on the fine may do little to dissuade the actions of large conglomerates. 

Proactive efforts in Europe - the position in France and Belgium

Ahead of the Directive, other European countries have been proactive in implementing and drafting legislation around the use of criminal sanctions to facilitate environmental protection, which is acknowledged in the Directive.

In 2021, France introduced the Climate Resilience Act which lays down criminal offences for causing “serious and lasting damage to health, flora, fauna or the quality of the air, soil or water”. Such crimes carry a sentence of up to ten years in jail. Similarly, Belgium will introduce an offence into Article 94 of the Belgian Penal Code towards the end of 2025 which utilises a variation of the definition of ‘ecocide’ (as detailed below). 

Ecocide

Beyond the recent revisions to the Directive and developments in the criminal laws of other European countries, there has been an increasing focus on the concept and crime of ecocide. 

The term ‘ecocide’ was first coined by Professor Arthur Galston in 1970 and is derived from the Greek word of ‘oikos’ meaning home and the Latin word of ‘cadere’ meaning to kill. Since then, Stop Ecocide International (“SEI”), a non-profit company, has been the driving force behind the growing global movement to make ecocide an international crime, proposing the following definition: 

“Ecocide, an unlawful or wanton act committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” 

“Long-term” damage means irreversible damage or damage that cannot be redressed through natural recovery within a reasonable period of time. 

“Wanton” means with reckless regard for damage which would be clearly excessive in relation to social and economic benefits anticipated.

“Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources. 

Although, there is no existing standalone crime of ‘ecocide’ in the Rome Statute of the International Criminal Court (“ICC”), Article (8)(2)(b)(iv) does provide for the war crime of “intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment.” The ICC is also currently preparing a policy paper on environmental crimes. 

What is taking shape at the domestic level?

In addition to developments at the international level, ecocide is gaining traction within the domestic sphere both at home in the UK and in other jurisdictions. 

Whilst breaches of environmental law in the UK have long been sanctioned under a criminal regulatory regime, in November 2023, Baroness Boycott proposed a new private members Bill (the Ecocide Bill) to the UK House of Lords, just weeks after Scottish Labour and Co-op MSP, Monica Lennon, introduced a similar private members’ Bill (the Ecocide Prevention Bill) in the Scottish Parliament. Both Bills seek to deter mass environmental damage and destruction and aim to protect all natural resources such as air, water, soil, habitats, and wild flora and fauna. 

. The main features of Baroness Boycott’s Ecocide Bill are summarised below:

  • Definition: The definition of ecocide in the Bill has been adapted from the international definition of ecocide proposed above. Ecocide could be committed by any individual, companies, partnerships or other organisations, including public bodies, government departments or agents of the Crown. 
  • Superior Responsibility: Section 4 of the Bill introduces the concept of “Superior Responsibility” which provides that people in a position of Superior Responsibility for example directors, senior managers, partners or lenders will be responsible for any offences committed by staff members under their authority and will therefore be liable if they fail to take any reasonable measures to prevent anything that could lead to the commission of the crime of ecocide. Anyone responsible for aiding, abetting, counselling or procuring the commission of a crime will also be responsible.
  • Investigation and Prosecution: Section 7 provides that any investigation into the crime of ecocide would be undertaken by the Environment Agency. Initiation of any prosecution would then be referred to the Crown Prosecution Service. The Secretary of State will be responsible to ensure that the Environment Agency has sufficient resources available to investigate potential offences.
  • Establishment of Defences and Penalties / Protection for Reporters: according to section 3, the Secretary of State, through the introduction of new regulations, would provide for defences and penalties for the act of ecocide as defined in section 1 and 2 of the Bill. The Secretary of State would also be responsible for introducing statutory instruments for the protection of people who report environmental crimes under section 6.

Monica Lennon’s Scottish Bill is presented in the form of a consultation. The consultation describes the objectives that should be achieved in introducing the crime of ecocide to Scotland and proposes sanctions that are significantly stronger than those in existing environmental laws in Scotland such as a minimum of 10 years and maximum of 20 years imprisonment; and/or financial sanctions of up to 10% of worldwide turnover for companies.

Both ecocide Bills have been proposed as mechanisms to raise awareness and spark debate. The Bills symbolise the growing movement and pressure on the UK government and devolved administrations to take stronger action and stricter measures against those that cause environmental harm and damage. However, with the general election being called for 4 July 2024, we anticipate that the Bills will not be carried over to the next parliament, so we will need to wait and see if something similar is introduced again. 

What does this all mean?

The crime of ecocide is still very much in its infancy, but the Directive and domestic and international developments illustrate that the call for the strengthening of criminal sanctions for environmental offences is gaining momentum. We expect that, throughout the implementation period for the Directive, individualised approaches to environmental offences will begin to take shape for member states, which could impact indirectly the conversation and legislative developments in the UK. 

We do not expect any ecocide Bills in the UK to materialise into law any time soon, but individuals and companies (including directors and officers) should remain mindful of these emerging developments across the UK and Europe and the potential risks that they pose, reflecting on current practices and operations to ensure that environmental protection measures are in place. 

If you have any questions or would like further information on how these developments may impact you, please contact Michael Barlow or Victoria Barnes.

Article written by Victoria Barnes and Lucy Ashmore.


 

[1]Environmental crime: Council clears new EU law with tougher sanctions and extended list of offences - Consilium (europa.eu)