Business Clinic: Advice on pollution interview under caution

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Alex Madden, head of planning and environmental at Thrings, looks at what to do if you get a summons for an interview under caution.

See also: Business Clinic: what rights does right of way confer?

Q: I have received a letter from the Environment Agency (EA) summoning me to an interview under caution in relation to a suspected pollution incident on my land. Do I have to attend, should I attend, and what do I need to find out/do in advance of the meeting?

A: Receiving an invitation to an interview under caution (otherwise known as a Pace interview) from a regulatory body can be, understandably, an anxious moment.

Such an interview is often a formal evidence gathering exercise by the regulator to assist them in their enquiries and, in particular, whether an offence has been committed.

There are various options available at this stage and choosing the right one is imperative as it can shape the nature of the investigation by the EA.

For this reason you should get professional advice as soon as possible.

While it is not compulsory to attend such an interview, setting a co-operative tone at an early stage with the EA could pay dividends as the investigation develops. 

Also, it is often an opportunity to put forward your version of events, set out any defences that may be available and any extenuating circumstances surrounding the incident. 

A prudent step at this stage is to open a chain of communication with the EA and request  pre-interview disclosure of the EA’s evidence, which would then, in turn, allow you to understand the strength of their case and precisely what matters are being investigated.

In some instances, the option of submitting a Pace-compliant statement as an alternative to attending the interview may be appropriate.

The advantage here is that you are in control of which information is supplied and you can avoid the anxiety caused by attending a formal Pace interview.

‘No comment’ interview

There is also the possibility of a “no comment” interview which may help to avoid self-incrimination, although it is important to seek legal advice on this option, which can have unintended consequences if the EA were to take formal action.

It is also important to remember that not all offences will necessarily result in the EA bringing criminal proceedings.

The “civil sanctions” regime applies for certain offences, including polluting a watercourse.

This route avoids a court hearing, along with the cost and adverse publicity associated with it.

Of the various civil sanctions available, one option is requesting that the EA agree to an enforcement undertaking.

This involves you entering into an agreement with the EA to, among other things, remedy any environmental harm, commit to putting in place measures to prevent future incidents occurring and make a contribution to an environmental charity such as a river trust.

Legal expenses insurance cover 

It is also advisable to check your insurance policies promptly, to see if there is cover for legal expenses or remediation costs.

While an investigation of this type may cause businesses severe disruption, taking early legal advice can ensure that you proceed on the right footing and give you the best chance of avoiding prosecution.

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