Complaint one: The Fishery Owner complains that the Environment Agency did not prosecute the contractor who caused damage to their fishery in November 2014. They say that the decision was not consistent with the relevant standards or legislation and was unduly lenient.
57. The Environment Agency’s enforcement decision results from its investigation of the incident. We have therefore looked at the Environment Agency’s actions from the time it became aware of the incident through to when it made an enforcement decision.
The Environment Agency’s initial response to the incident
58. The Environment Agency’s Investigation Manual provides detailed guidance to officers about how to investigate environmental incidents that might constitute an offence.
59. It says:
‘Initial inquiries begin when you detect a possible offence or receive a report of an offence. The degree and extent of this initial inquiry will vary depending on the case, however, you must make sure that you collect evidence that may or is likely to become unavailable to us at a later date, for example, samples and photographs’.
60. The guidance goes on to say that an immediate enforcement response might be necessary in a situation where the officer suspects, among other things, ‘actions that undermine legitimate business’, or ‘the commission of an indictable offence’.
61. It also says, ‘you must always gather evidence that does not preclude us taking formal enforcement action later on’.
62. The Environment Agency’s guidance on the CICS and NIRS says an incident includes a specific event brought to its attention, within its area of responsibility, which may have an environmental impact.
63. The NIRS guidance says incidents should be recorded on NIRS. The CICS guidance concerns the Environment Agency’s response to, and assessment of, an incident.
64. The CICS guidance includes two considerations that the Environment Agency needs to complete when it is first informed of an incident. The first concerns the deployment of resources. The second is a consideration of the impact on the environment. The guidance includes a section on fishery incidents.
65. The CICS says that incidents of fishery offences committed under the Theft Act only should be referred to the Police. Incidents where there is also a fishery offence should be recorded as an incident on NIRS and classified under the CICS according to the fisheries element of the offence.
66. The CICS guidance says that illegal fishing by rod and line by two or more anglers might result in a significant impact, as would illegal fishing with nets.
67. The Ombudsman’s Principles say that when giving advice or information, public organisations should give information that is clear and complete.
68. On 10 November, the Fishery Owner informed the Officer of an incident at the fishery. The Fishery Owner was alleging theft of fish. The Officer informed them that he could attend the fishery ‘after 3pm’, which was about 40 minutes after he spoke with them.
69. The Officer was aware that an authorisation to use a net was in place but that was subject to the permission of the landowner. The Officer was aware that the Fishery Owner (the landowner) had not given her permission for fish to be removed.
70. The Fishery Owner had also asked for the authorisation to be withdrawn until at least February 2015. The Officer had not withdrawn the authorisation yet. The Officer would have been aware that even though the authorisation was in place it only allowed the use of a net to remove a certain number of fish.
71. The Officer should have therefore been aware that the incident was a potential breach of the authorisation to use a net and a possible theft of fish (i.e. because The Fishery Owner had not given her permission for the fish to be removed). Theft of fish from a fishery has the potential to disrupt legitimate business because anglers will fish at a fishery to try and catch one particular fish, or particular sizes and species of fish. One fish can potentially be very valuable because it can be caught and returned a number of times.
72. In accordance with SAFFA, fishing in breach of an authorisation is classed as ‘unauthorised fishing’.
73. The possible theft of fish was a matter that, in accordance with the guidance in CICS, could be referred to the Police.
74. At this point, the Officer who was alerted to the incident should have acted in accordance with the CICS, NIRS and Investigation Manual guidance. The incident should have been recognised as such and an initial assessment should have been done to determine the Environment Agency’s response and the potential impact of the incident. The Environment Agency should have also acted to ‘collect evidence that may or is likely to become unavailable at a later date’.
75. The Officer’s notes of the incident do not include a record of his initial assessment. They only say that he was unable to attend the site because he was too far away. He said he could not reach his manager on the telephone. There is no consideration of the possible impact of the incident that we can see.
76. The Environment Agency told us there were a number of other background factors that may have affected the Officer’s decision to attend the incident and his assessment of the potential impact. These included his background knowledge of the authorisation and the plan to remove the fish at a later date, knowledge of the contractor’s business (for example, the fact that he mixed fish when he introduced them to his fishery), the capacity of the contractor’s transportation tank, and the chance of being able to audit the fish given that they needed to be moved quickly for their health. However, these considerations have not been recorded anywhere.
77. The level of response to an incident is determined by the initial assessment under the CICS guidance, not by an individual’s ability to attend. We accept the Environment Agency’s evidence that the Officer probably had a good deal of background knowledge about the situation and the contractor. That may have formed part of his judgement about the response required. However, we cannot say that it did. This is because there is no record of those considerations in the Officer’s pocket book or his later witness statement.
78. There is no evidence from the time of the incident that the Officer treated this as an incident in accordance with the guidance. There was also no NIRS record made by the Officer either at the time, or later which, again, suggests he may not have considered this to be an incident in accordance with the guidance. We consider that the Officer failed to act in accordance with the CICS and Investigation Manual guidance at this point.
79. Once an incident is recognised as such, the Environment Agency’s Investigation Manual required the Officer to first ensure relevant evidence that could not be collected later, was collected.
80. The Officer called the contractor during the incident. He asked him what fish he had taken and where he was taking them. The Officer did collect this limited evidence, but it was dependent on the account of the contractor, who the Fishery Owner was accusing of theft.
81. In its response to our provisional views on this case, the Environment Agency told us it did not consider that there was any evidence that could have been collected at the time about the unauthorised fishing offence. It said the fish could not be seized because that would be detrimental to their welfare, and the Police would not be able to audit the types or species of fish that were taken.
82. However, the Environment Agency acknowledged that its Officer could have ordered the fish to be returned to the fishery. Environment Agency Officers could also have audited the fish when they were introduced into the onward fishery. We acknowledge that there may have been limited time to do that. Nevertheless, we have not seen any evidence to show either of the above actions would not have been possible. Either of these actions may well have prevented the offence from happening or may have made the nature of the offence very clear. The Environment Agency has not shown it properly considered these possibilities at the time. This seems linked to the fact that there is no evidence of an initial assessment of the incident in accordance with the CICS guidance (as in paragraphs 54 to 58, above).
83. During this investigation, the Fishery Owner told us that she and other members of the community collected evidence of the incident and were witnesses to it. She says she has evidence from photographs taken the following morning from the site boundary. Council engineers also took pictures of the lake wall to assess the damage to it. She says she therefore disputes the Environment Agency’s comments that there was no evidence that could be collected at the time. She says the Environment Agency simply ignored this evidence, despite it being available at the time and after the incident.
84. The evidence that the Fishery Owner is referring to is evidence relating to potential environmental harms and impacts of the incident. We will look at this in more detail in the next section of this report.
85. The Officer also spoke to the Police who attended the incident. The Officer told the Police that an authorisation was in place for the use of a net. He told the Police the contractor did not have the Fishery Owner’s permission to be on the land.
86. In his statement, made on January 2015, for the purpose of the Environment Agency’s investigation, the Officer said that he told the Police that the authorisation did not give permission to remove fish. However, in an earlier written version of the events from November 2014, the Officer did not specifically say he said that.
87. The Officer did not, in either account, say he explained a condition of the authorisation was only a certain number of fish could be removed (and then only with the landowner’s permission).
88. The Police in attendance (as set out in a recent IOPC report) say the Officer said the contractor did not have the permission of the landowner to be on the land, but ‘agreed’ that there was no theft of fish. The Environment Agency has said that the Officer did not ‘agree’ there was no theft. This difference in accounts would suggest the Police did not understand the purpose of the authorisation, even if the Officer did not ‘agree’ there was no theft.
89. Given the evidence of the Police, the advice from the Officer was, on balance, unlikely to have been clear enough in saying that there was, at the very least, a potential theft of fish as well as a breach of the authorisation. The CICS guidance makes it clear that it is only matters that are under the theft act only that are referred wholly to the Police. This was not in accordance with the Ombudsman’s Principles.
The collection of evidence about potential environmental impact
90. The Fishery Owner said that she is concerned the Environment Agency did not act to prevent or collect evidence about potential, or actual, environmental harms being committed by the contractor.
91. The CICS guidance includes a description of the matters that inform Environment Agency decisions about the impact of the offence. These include: impacts to land and water, whether there was significant impact on fish stocks (this includes all species of fish), and the amenity impact to the fishery where the impact occurred (that is, the ability of the fishery to continue normal business or for normal activities to continue).
92. The CICS guidance also makes it clear that Environment Agency officers should consider conservation responsibilities. That includes matters outside of its remit. For example, it includes when a protected species might be affected or when there is Environmental Damage in the meaning of the specific legislation about that. In those instances the Environment Agency has a responsibility to address those issues either by its own action or by referral to other agencies and authorities.
93. We can see from the Environment Agency’s NIRS record that the incident, once it was recorded, was recorded as a category 2 (significant) potential impact because it was a significant fishing incident. After visiting the fishery, the Environment Agency changed the impact assessment to a category 4.
94. The Fishery Owner disagrees with this subsequent assessment. She says the Environment Agency should have done more to investigate the potential environmental harms. She said the act of draining the lake was unnecessary and was a ‘water discharge activity’ that required a permit. She suggested it was also ‘water abstraction’, which also requires a licence.
95. The Fishery Owner also said there was polluting matter – Canadian Pondweed - in the fishery lake which would have been carried downstream. She says this shows that draining the lake was a water discharge activity.
96. She said that damage to the banking wall meant there was a potential risk of flooding. She also said that ‘damage to a fishery dam wall’ is an offence in the SAFFA legislation.
97. She said that draining and netting the lake caused harm to a population of freshwater pearl mussels, which are a protected species.
98. When making decisions about what and how to investigate we would expect the Environment Agency to act in accordance with the legislation, its own guidance – specifically that in the Investigation Manual and Enforcement and Sanctions Guidance, and in accordance with the Ombudsman’s Principles. Those say that public bodies should take relevant considerations into account and balance the evidence appropriately.
99. The Environmental Permitting Regulations 2010 require water discharging activities to have a permit, otherwise they are an offence. A ‘water discharge activity’ is defined in schedule 21 of the Act:
(a) the discharge or entry to inland freshwaters, coastal waters or relevant territorial waters of any—
(i) poisonous, noxious or polluting matter,
(c) the removal from any part of the bottom, channel or bed of any inland freshwaters of a deposit accumulated by reason of any dam, weir or sluice holding back the waters, by causing it to be carried away in suspension in the waters, unless the activity is carried on in the exercise of a power conferred by or under any enactment relating to land drainage, flood prevention or navigation;
(d) the cutting or uprooting of a substantial amount of vegetation in any inland freshwaters or so near to any such waters that it falls into them and failure to take reasonable steps to remove the vegetation from these waters;
100. A water discharge activity does not need to be intentional.
101. The Countryside and Wildlife Act 1981 schedule 9 includes Canadian pondweed amongst species that it is an offence to ‘cause to grow’ in inland waters. However, it is not an offence if it is managed on your own land. The Environment Agency does not regulate the Countryside and Wildlife Act. Nevertheless, we can understand the Fishery Owner’s concern about this. This legislation shows there is potential for Canadian pondweed to be polluting and under its duties regarding conservation and the Environmental Permitting Regulations, the Environment Agency has to be considerate of this in responding to incidents.
102. We also acknowledge the Fishery Owner’s concern that silt carried from the fishery lake may have been polluting (in accordance with the legislation at paragraph 21(c)).
103. We therefore considered whether the Environment Agency should have taken any action under the Environmental Permitting Regulations when the contractor drained the lake.
104. The Fishery Owner told us that she does not think that draining the lake was necessary to net the fish. She says she has not experienced that before. She says the lake was deliberately drained to cause harm.
105. The Environment Agency told us it is not unusual to drain a fishery lake in order to remove fish. It explained it can be of benefit. Partially draining a lake moves the fish into a smaller area which allows for the use of a smaller net. This in turn reduces the disruption of weed growth and silt in the lake, as well causing less distress to the fish.
106. We looked at publicly available resources about removing surplus fish and we have no reason to question the Environment Agency’s view that partially draining a fishery lake is not unusual. We recognise the Fishery Owner disagrees.
107. The Environment Agency also explained that the draining of the lake in this instance was not considered by them to be polluting or potentially polluting/a cause of environmental harm or a water discharge offence. This is because:
• the water was drained through the sluice, which is its intended purpose for a controlled drainage of the waters
• there was no evidence of significant silt being carried downstream that was likely to cause a problem
• if any Canadian Pondweed was uprooted and carried downstream, this would be unlikely to attach to the riverbed and cause harm to fish
108. The Fishery Owner also says the Canadian Pondweed was uprooted during the netting operation and ‘dragged the whole length of the lake’. She says her evidence for this is when she took back possession of the fishery in February 2015, the lake was full of pondweed. She says this is also evidence that some of the pondweed would have flowed downstream when the lake was drained, potentially causing pollution.
109. She says that the contractor therefore also ‘caused it to grow’ on her land and downstream in the meaning of the Countryside and Wildlife Act. She says this was a flood risk. She says the Environment Agency did not take these relevant considerations into account.
110. We understand the Fishery Owner’s distress in finding the pondweed had spread across her lake in February 2015. However, this is not evidence it was uprooted in any significant way during the netting operation. The legislation concerns the substantial uprooting or cutting of vegetation that is then allowed to fall back into the water. The spread of the pondweed does not show that the pondweed was uprooted in substantial amounts. We understand Canadian Pondweed to be highly invasive in any case. It may have spread regardless of the incident.
111. The Environment Agency did not think that any pondweed that did flow out of the sluice would be likely to attach to the riverbed. We understand that Canadian Pondweed prefers to grow in still waters or slow flowing waterways. We also understand that the Environment Agency did not consider there to be any likely pollution arising from the lake being drained on other occasions. We understand waters constantly drained naturally from the lake. These facts lend credibility to the Environment Agency’s assessment on this occasion.
112. We have looked at the legislation and the Environment Agency’s consideration. We have currently seen no evidence that the Environment Agency should have determined that there had been a ‘water discharge activity’. The legislation does not say that any discharge of waters into an inland water is a discharge activity. The water was discharged in an appropriate manner (through the sluice) and was apparently necessary.
113. The Fishery Owner also suggests that draining the lake was an act of water abstraction in accordance with The Water Resources Act 1991. Chapter two section 24 of that act says that ‘no person shall abstract water from a source of supply’ without a licence.
114. We have currently seen no evidence that draining the fishery lake amounted to ‘water abstraction’ as set out in the legislation. The water does not appear to us to have been ‘abstracted’ in the meaning of the legislation.
115. We accept the Fishery Owner’s point there was potential for the pondweed or the silt to be polluting. The Environment Agency has told us how it made a considered judgement about the potential environmental impact of the pondweed, after a visit to the site. The factors the Environment Agency took into account (as above) appear to be relevant ones and were weighed appropriately. This is in accordance with the Ombudsman’s Principles.
116. The Fishery Owner has said that the contractor had no right to operate the sluice. However, that is not a matter that is relevant to the Environment Agency’s assessment of environmental pollution. It is relevant to the Environment Agency’s enforcement decisions and the Police investigation into theft and criminal damage, which we will consider in more detail later in this report.
117. The Fishery Owner also complained damage was done to the lake’s banking wall. She explained the village caretaker was so concerned about the contractor’s actions (‘pounding’ on the wall) they informed a local councillor. The councillor in turn arranged for a local authority engineer to assess the structural integrity of the wall because of fears that it was not secure. She says the damage to the banking wall posed a flood risk to the community below the fishery.
118. The Fishery Owner also notes it is a specific offence in SAFFA to cause damage to a dam wall with the intention of stealing fish.
119. The Environment Agency told us the banking wall was a clay earth structure covered in cobble stones. It estimated the clay bank to be twenty feet wide. The Fishery Owner disputes this and says the land slopes away. However, it is clear that there are several feet of clay bank at the narrowest point of the wall.
120. The Environment Agency said that when it’s Officer attended the fishery the day following the incident (NB as in the background, above, this visit was not on fishery grounds because the tenants were not present, the Officer observed from the fishery boundary) he saw there was damage to the stone cobbles on the wall in three places.
121. At the time the Officer attended the following day, the lake was re-filling (it fills from a natural stream). This would suggest there was no significant concern at that time that the banking wall might collapse.
122. The Environment Agency has said that it did not think that this damage posed a potential risk to the integrity of the clay wall, or a potential environmental risk (i.e. from flooding).
123. The Fishery Owner says that the Environment Agency could not have made that assessment without collecting more evidence.
124. The Environment Agency visited the site and saw the banking wall. The Environment Agency could have collected further information about this – such as witness accounts of the caretaker and the local authority engineer. The caretaker was obviously concerned enough to call an engineer.
125. However, knowledge of whether the contractor ‘pounded’ on the wall would not have affected the Environment Agency’s assessment of the potential environmental risk (of flooding). The Officer could see the damage to the cobbles.
126. The Fishery Owner believes the damage to the dam wall is an offence under SAFFA. We do not agree that the situation here seems to be what the legislation describes. There is no evidence the Environment Agency should have taken action in respect of legislation about the destruction of dams.
127. The Environment Agency’s Enforcement and Sanction guidance states quite clearly that it will act proportionately. The Environment Agency took relevant considerations into account when considering if the damage to the wall was a risk or a potential environmental impact of the incident. The main consideration for the Environment Agency was the integrity of the clay bank. It considered this and concluded there was no significant risk of any environmental harm. Given that, it would not have been proportionate to investigate further. This is in accordance with the Ombudsman’s Principles.
128. The Fishery Owner also says that the netting operation disrupted a population of freshwater pearl mussels.
129. We cannot see any evidence that the Fishery Owner raised the issue of freshwater pearl mussels with the Environment Agency at the time of these events. The Fishery Owner says that she did and that Environment Agency Officers walked past many dead mussels on the banks of the fishery lake when they visited on 19 November 2014. She said they did nothing about these. She has provided some photographs of mussels scattered on grass to demonstrate this. We cannot say from those pictures if these are pictures are of freshwater pearl mussels, or if they would have been visible to the Environment Agency Officers who visited on 19 November 2014.
130. Freshwater pearl mussels are extremely rare. At the time of these events the last breeding population was known to be in the River Ehen in West Cumbria. Freshwater pearl mussels prefer fast flowing rivers with sand or gravel beds and rely on salmon and trout populations for survival. This suggests it might be unusual for them to populate the fishery lake. This is not to say the mussel population wasn’t there, only that it would not be expected.
131. Given this, there appears to have been no reason for the Environment Agency Officers to have suspected that there were freshwater pearl mussels in the fishery lake. The Fishery Owner says she told the Environment Agency officers about them, but this is not apparent from any other evidence we have. We do not think, on balance, the failure of the Environment Agency to take any action about freshwater pearl mussels indicates they failed to take a relevant consideration into account when assessing the possible environmental impact of the incident.
132. Finally, the Officer said that when he attended the fishery the day after the incident he did not see any evidence of fish in distress in the fishery, despite the water being drained to a reported 0.5m depth. The Environment Agency has explained evidence of fish being in distress would be fish coming to the surface to breathe.
133. The Environment Agency assessed the impact of the incident on the fish, including the depth of the water and the lack of signs of fish in distress. This took all relevant considerations into account regarding the welfare of the remaining fish in accordance with the Ombudsman’s Principles.
134. The Fishery Owner points out that it might have been difficult to observe whether fish were in distress across the whole of the lake from the fishery boundary (the Officer was not able to go on to the site when he visited the day after the incident). This is a reasonable point. However, we think it would be possible for the Officer to observe if fish were coming to the surface in at least the closest sections of the lake. There is no reason to think that this was not indicative of the whole lake.
135. The Fishery Owner makes the general point that the Environment Agency could have done more to investigate all of the issues she has raised as matters of potential environmental harm. She says that when the Officers visited her on 19 November they told her they simply could not help her with the above issues. The Officer’s record of the meeting also confirms that they told the Fishery Owner they could not help with these issues.
136. We agree with the Fishery Owner that the CICS guidance includes (potential) ecological and conservation impacts as ones the Environment Agency should consider when assessing the impact of an incident on the environment.
137. However, it is also the case that the Environment Agency has to act proportionately. It does not take action in respect of matters which it considers to be low risk or of minimal (potential) impact. As explained above, the Environment Agency concluded that the matters the Fishery Owner raised had minimal impact, and minimal risk of environmental harm. The Environment Agency took relevant considerations into account when doing that. We would not expect it to investigate these further, even if it could have.
138. None of this is to say that we doubt the Fishery Owner’s accounts of the damage caused to her fishery by the growth of the pondweed or the damage to the banking wall, for example. However, these harms were not ones that the Environment Agency had to address in accordance with the legislation or its remit to protect the environment from real or potential harm.
139. We have looked at the Environment Agency’s NIRS records which record the Environment Agency’s consideration of the environmental impact of the incident. This shows the categorisation of this incident as a category 4. The record appears to include very few details about the incident or the Environment Agency’s considerations of the impact of it.
140. The Environment Agency’s NIRS guidance says that when quality assuring the NIRS record, managers should check it contains ‘sufficient information’ about the things such as the ‘root cause’ of the incident and ‘evidence of impact’.
141. While it is not for us to say how much information is ‘sufficient’ for Environment Agency purposes, we would expect the information to be ‘sufficient’ to understand the incident and the Environment Agency’s response to it. This is in accordance with the Ombudsman’s Principles – Being Open and Accountable, which say that organisations should be able to account for their decisions. It says that organisations should make and maintain usable and reliable records as evidence of their activities.
142. The Environment Agency has explained that the NIRS record has to be closed within a month of the date of the incident. In this case, partly because of the involvement of the Police, the investigation was ongoing at that point. We recognise this may have affected the detail recorded. We also recognise that the case was handed over to a different officer after the initial visits and assessments. This may also have affected the detail recorded.
143. The Environment Agency has pointed us to its assessment of the public interest factors to explain its assessment of the environmental effect/impact of the incident.(note: the public interest factors document does not address only environmental impact). The public interest factors say that the only possible environmental impact as a result of the incident was if the fish were diseased (and therefore movement of them in breach of the authorisation may spread that disease).
144. By the time the public interest factors document was written, the Environment Agency were well aware of the Fishery Owner’s concerns about the banking wall, pondweed and water discharge. We have seen above that the issues the Fishery Owner had raised were not ones the Environment Agency considered to have an environmental impact. However, they were issues that – in accordance with the Environment Agency’s CICS guidance - could have been relevant to assessing the impact.
145. The Environment Agency has explained the issues of concern to the Fishery Owner had been considered by the Environment Agency’s officers. The Environment Agency has given the rationale for its conclusions. Its rationale explains, at least in part (the issue of theft/loss of amenity is also relevant – which we will consider below), why the incident was downgraded from a category 2 to a category 4 incident. As such, we would expect to see some contemporaneous record of this. This would be in accordance with the Environment Agency’s guidance and with the Ombudsman’s Principles.
146. We have therefore seen some indications of failings in the way the incident and the impact of it were recorded by the Environment Agency. However, as above, we have not seen evidence of any failings in respect of the Environment Agency’s response to, or consideration of, the potential environmental impacts that the Fishery Owner has concerns about.
The collection of evidence - Fish stocks
147. The Fishery Owner says that the Environment Agency should have netted the lake soon after the incident to see what fish were left. She says this would have provided evidence that there was theft of fish over and above those listed on the authorisation.
148. The Fishery Owner also says that no fish should have been taken because the authorisation was ‘null and void’ without her permission to remove the fish. We will address this second point in the next section of the report.
149. The Ombudsman’s Principles say that when making decisions public bodies should take all relevant considerations into account and weigh the evidence appropriately.
150. The Environment Agency has recorded its consideration of whether netting the lake would have been helpful to its investigation during a discussion between officers on 19 November 2014:
‘We considered that we had no original baseline of fish stocks to assess against and that we had no evidence of the number of fish removed. A fish survey would show fish stocks present in the fishery but would not be able to prove what had been taken. While we knew the number of fish that had been stocked by the tenant, we didn’t know the density of coarse fish present beforehand …
‘Stocked trout in stillwaters tend not to survive winter very well and with the time from the last fish introduction being in September 2013 of 100 rainbow trout, we felt it likely that very few trout would remain …
‘… A survey would not have provided evidence of the number of fish removed …’
151. The consideration recorded, as above, in the Environment Agency’s files show that relevant considerations were taken into account when the decision was made not to net the lake. This is in accordance with the Ombudsman’s Principles.
152. The Environment Agency Investigations Manual says the standard of proof that must be applied to any potential prosecution is ‘beyond reasonable doubt’. Netting the lake would not provide evidence to that standard without specific knowledge of the fish stocks in the lake when the tenants took the fishery over and/or how the stocks depleted during the tenancy. While the Fishery Owner has been able to provide us with some information about the types of fish that may have been in the lake, this is not sufficient to determine the number, type or value of the fish in the lake.
153. The Fishery Owner says an estimate could have been made of what was in the lake given that there had not been a removal of coarse fish since 2012. She says on that occasion the operator arrived late and had a hole in his net and could not even collect enough fish to cover his expenses. She says this shows there would have been a lot of fish left in the lake, particularly as fish breed and multiply. She says that as there was nothing left in the lake after the incident, that would prove the contractor took everything.
154. We understand that fish do not thrive when the stocks are too dense, so evidence of a lack of removals does not necessarily show stocks to have been significant. The tenants stocked heavily when they arrived. The Environment Agency considered all of this, as well as the regularity that trout stocks were replaced prior to the tenancy when considering whether there was more evidence about the fish that were taken. These were all relevant considerations.
155. We recognise the Fishery Owner strongly believes there were many valuable fish in the lake at the time of the incident. However, the evidence does not support that view, nor dispute it, we simply do not know. The Fishery Owner has also provided evidence – witness statements from people who were aware that the tenants had removed many valuable stocks from the lake in early 2014 – well before this incident. This only adds to the uncertainty about what would have been in the lake.
156. We agree with the Fishery Owner that if there was very little left in the lake, then the contractor must have taken everything. However, that does not show that he took more than was listed on the authorisation (which the Environment Agency has already paid compensation for) or more than he said he did.
157. Looking at the evidence available, we are satisfied that the Environment Agency weighed the evidence appropriately. This was in accordance with the Ombudsman’s Principles.
158. We have not, therefore seen any evidence of failings in respect of the Environment Agency’s decision not to net the lake.
Conduct of the investigation in accordance with PACE
159. The Fishery Owner has also told us she does not think that the Environment Agency’s investigation was carried out in accordance with the PACE (Police and Criminal Evidence) Code of Practice or CPIA (Criminal Procedure and Investigations Act). The Environment Agency’s Investigation Manual explains that Environment Agency investigations are carried out in accordance with this guidance.
160. PACE and CPIA concern the process of conducting criminal investigations and matters such as the collection, preservation and recording of evidence, the treatment of detainees and those being questioned. Much of that does not apply here.
161. The Fishery Owner has said that she thinks it does apply. In particular she is concerned with the collection of and recording of evidence. Her comments relate to the recording and collection of evidence in respect of the matters we have already addressed above. For example, the growth of the pondweed and the banking wall. We have already explained why the Environment Agency did not investigate those matters further. This is not a matter of collecting and recording evidence.
162. The Environment Agency undertakes to act in accordance with PACE and says in its Investigation Manual that this requires ‘all reasonable’ lines of enquiry to be pursued.
163. We have already looked at a number of ‘lines of enquiry’ (about environmental harm and fish stocks etc) and opportunities to collect evidence that the Fishery Owner says were not pursued. She has also explained that she does not think the Environment Agency looked closely enough at the intent of the contractor. She has alleged that he was trying to gain financially and that he was acting as part of a wider hate campaign her tenants were waging against her.
164. As part of its investigation the Environment Agency conducted an interview (jointly with the Police) with the contractor. The Environment Agency only has the power to consider the contractor’s role in the breach of the authorisation. The Environment Agency confirmed that the appropriate place for it to assess the intent of the contractor was in the interview.
165. The Environment Agency has explained that the issue of intent was not relevant to proving the offence of ‘breach of authorisation’. Nevertheless, it is relevant to the Environment Agency’s enforcement decision.
166. Regarding taking statements, the Environment Agency’s Investigation Manual says
‘When obtaining or writing a statement, you should always consider not just what we are trying to prove but the full circumstances of the matter, in particular, facts surrounding the Public Interest (PI) factors such as:
• Financial aspects, such as avoided costs, or money made by offending;
• The intent of the offender …’
167. The Environment Agency’s Enforcement and Sanctions Statement says it will act proportionately.
168. The Environment Agency record of the contractor’s statement said he thought there was appropriate authorisation in place. He said he had seen emails to the tenants in which the Fishery Owner had given her permission to remove the fish. The Environment Agency recorded that the contractor said he told the Fishery Owner he was going to carry out the netting. It does not say whether he thought he had the Fishery Owner’s permission, but it seems implicit he did not. He did not try to say he had her permission. The Environment Agency also recorded the contractor said he lost money from the fish removal. These statements are all concerned with the contractor’s financial gain and his intent.
169. The Fishery Owner rightly points out that it remains unclear to her why the contractor would purposefully act without her consent even if he was satisfied there was an appropriate authorisation in place. The contractor is an experienced contractor and, as the Environment Agency has pointed out, was solely responsible for meeting the conditions on the authorisation. There is no question that the contractor would not have known he needed the Fishery Owner’s consent to carry out the netting.
170. We considered carefully whether the Environment Agency properly considered the issue of intent, given the Fishery Owner’s claims that the contractor was intent on financial gain or party to a hate crime.
171. The Environment Agency said its experience of contractors in this industry meant it had accepted the contractor’s intent was nothing beyond completing the job he had been engaged to do. The Environment Agency pointed out that contractors generally have multiple jobs to attend to which are scheduled in and contractors would be reluctant to change those arrangements. The Environment Agency said that the contractor did not try and dispute he did not have the Fishery Owner’s permission. It said there was no reason to think he had a malicious intent.
172. The Environment Agency also explained it had no reason to think the contractor benefited financially. This was because it was aware how many fish could be transported in the contractor’s vehicle. This size of this concurred with the weights the contractor had taken. The Environment Agency also commented it is not uncommon for contractors to be paid in the fish removed. This concurs with evidence from the Fishery Owner that she once paid for a contractor in the fish removed.
173. We accept the evidence the Environment Agency has given. We accept that it considered the contractor’s intent and its consideration was proportionate to the offence. We accept that the evidence was sufficient to show there was probably no malicious intent on the part of the contractor. Had the Environment Agency been considering theft then we may have expected a more robust consideration. We do not think that there is sufficient evidence to show that it needed to do that in this instance or that there were lines of enquiry that should have been pursued.
174. We understand that from a lay point of view, it is somewhat difficult to understand why the contractor acted as he did and risk being sanctioned for an offence. We share this difficulty. However, the contractor’s attitude to committing an offence or the risk of doing so does not demonstrate that the explanations given by the contractor were not sufficient for the purpose of the Environment Agency’s investigation.
The Environment Agency’s enforcement and sanction decision making
Decision under SAFFA:
175. The Environment Agency’s Enforcement and Sanction guidance says the Environment Agency will make enforcement decisions based on the Macrory Principles (these are principles that apply to all regulators). These include:
• aim to change the behaviour of the offender
• aim to eliminate any financial gain or benefit from non-compliance
• be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction
• be proportionate to the nature of the offence and the harm caused
• aim to restore the harm caused by regulatory non-compliance, where appropriate
• aim to deter future non-compliance
176. The Enforcement and Sanctions Guidance also says the Environment Agency will make enforcement decisions based on the outcome sought by it. Outcomes include: aim to change the behaviour of the offender, aim to deter future non-compliance, aim to restore harm caused by non-compliance. The Environment Agency also says that it will act proportionately and be considerate of what might be relevant in the individual case by recognising the situation of the offender and taking account of the nature of the activity.
177. The Enforcement and Sanctions guidance says that where the offending is serious – including if it involves ‘outright criminal activity’ - the Environment Agency would normally seek to prosecute. The guidance also says that where it is clear that the offender could reasonably have foreseen the offence occurring, the response is likely to be higher than advice and guidance or a warning letter.
178. The Environment Agency’s Offence Response Options guidance (ORO) sets out the enforcement options available for each type of offence. The ORO states that the options available for a breach of section 27 of the SAFFA are – warning, formal caution, or prosecution.
179. The Fishery Owner has referred to the civil sanctions legislation. She says it shows the civil sanctions (monetary penalties etc) that were available here.
180. We explored whether there was a civil sanction available with the Environment Agency. The legislation suggested that there was a variable monetary penalty available. The Environment Agency initially agreed that was the case. However, on exploring the legal position further the Environment Agency concluded that a variable monetary penalty was not intended by the legislation to be available for this particular offence. The Environment Agency has given appropriate reasons for its interpretation of the legislation.
181. It is not for the Ombudsman to reach a definitive interpretation of the legislation. We have seen no evidence of maladministration in the view the Environment Agency has reached. Further, we have not seen that its interpretation makes any material difference to its sanction decision in this case. A variable monetary penalty is a sanction more serious than a formal caution. We will explain in the remainder of this report why the Environment Agency’s choice of a sanction less serious than that was appropriate in this case.
182. The Fishery Owner has also said that in selecting a sanction, the Environment Agency failed to properly consider, or weigh, other aspects of the evidence that was available. She says this would have made a difference to the sanction used.
183. In respect of weighing the evidence the Enforcement and Sanction guidance says:
‘When assessing our evidence as to whether an offence has been committed we will carefully assess the weight and cogency of all of the evidence to satisfy ourselves that an offence has been made out in accordance with the relevant test. We will take into account any weaknesses and ambiguities in our evidence and strive to search for the truth so far as possible in relation to any such ambiguities. In the event of a direct conflict of evidence we will construe any uncertainty in favour of the accused.
184. This is similar to the Ombudsman’s Principles which say that when reaching decisions, organisations should take all relevant considerations into account, discount irrelevant ones and balance the evidence appropriately.
185. The Ombudsman’s Principles also say that organisations should provide clear reasons for decisions.
186. The Environment Agency recorded its decision about the breach of authorisation on its case management system. It also completed the public interest factors. In its decision document the Agency considered three conditions on the authorisation that might have been breached. As we have explained elsewhere in the report, there were six conditions in total. The three considered by the Environment Agency were:
• To obtain the permission of the landowner
• To notify the Environment Agency 48 hours beforehand
• That only the fish listed on the authorisation could be removed, anything in excess had to be authorised by The Fishery Owner, and The Fishery Owner ‘must’ be told of the date of removal.
187. The Fishery Owner says she does not understand why the other conditions were not investigated, but this would appear to be that there was no prima facie evidence or complaint from her that they had been breached.
188. We note, however, that the Environment Agency did look into the matter of where the fish had been taken. A section 30 authorisation is required if fish are being introduced to another inland water, and there was not one in place. The authorisation included a condition about this. The Environment Agency concluded that the fish had been taken to the contractor’s holding ponds, for which no section 30 authorisation is required.
189. This part of the investigation was not articulated on the CMS document or on NIRS. We think this omission is evidence that the Environment Agency failed to act in accordance with the Ombudsman’s Principles because it is not an example of giving clear reasons for decisions.
190. The decision document explains the findings in respect of the three breaches described above. It says there had been a breach of the first condition.
191. The decision document says that the evidence was not sufficient either way in respect of the second condition. This was because the contractor claimed he had notified the Officer, but the Officer claimed he had not.
192. The decision document says there was no breach of the third condition. This was because the contractor said he only removed 200lb of fish (i.e. less than on the authorisation). Also in respect of the third condition, the decision document says that while the Fishery Owner had not given permission for the fish removal to go ahead, the contractor did tell her the day he planned to do it on.
193. The decision document also says that there was minimal environmental harm. It says that the Fishery Owner had given permission for the fish to be removed at the end of the tenancy. It says that the tenants had receipts for the stocks of fish on the authorisation. It says the Fishery Owner told Environment Agency Officers that the tenants could have had all the fish in the lake if they had waited until the end of the tenancy.
194. The Fishery Owner says that this agreement was qualified because she would only have let the tenant have the fish if they had left her property in a reasonable condition. The Environment Agency recognised that she had said the fish were a bond in the public interest factors.
195. The Environment Agency also considered the public interest factors. (NB we have not considered all of the public interest factors here – only the ones which affect the Fishery Owner’s complaints).
196. Under the headings ‘intent’ and ‘foreseeability’ the public interest factors record says the contractor was aware that the Fishery Owner had not given him permission to be on the land on the day proposed for the netting.
197. Under the heading ‘environmental effect’ the Environment Agency said there had been minimal environmental harm.
198. Under the heading ‘financial gain’, the public interest document says there was no apparent financial gain. It says the Fishery Owner’s claim was the offence had deprived her of a business and a deposit from the tenants. It says the tenants had been allowed to fish in the lake (and use it commercially). It says there was no agreement in place in respect of using fish as a bond/deposit. It said that the contractor appeared to have been caught up in a tenant/landlord dispute. It said the contractor said he had lost money doing the removal and his payment was keeping the fish he had removed.
199. The evidence above shows that the Environment Agency’s decision documents take relevant considerations into account. They balance evidence from all sides. They provide a record of the reasons for the Environment Agency’s decision. This is all in accordance with the Ombudsman’s Principles.
200. The exception to this is the differing accounts of the contractor and the Officer. The decision documents do not demonstrate that any consideration appears to have been given to any other evidence that may have been available (such as phone records).
201. The Environment Agency now says that it did try to obtain phone records to support its decision making, but those could not be made available to it and, in any event those would not demonstrate the content of the call. It says that the contractor made a number of calls to its offices and so it would not be able to discern whether the contractor had called the Officer or for what purpose. This is not recorded on the CMS decision document. This is not in accordance with the Ombudsman’s Principles – being able to give reasons for decisions.
202. The Fishery Owner also says that because she did not give permission for the fish removal, it was an act of theft for the contractor to take the fish listed on the authorisation. She says that without her permission the authorisation to use a net was null and void.
203. It is not the case that the authorisation is null and void without the permission of the landowner. We recognise that the Environment Agency did tell the Fishery Owner this and that information was wrong.
204. The Environment Agency files show that it took legal advice to confirm that the authorisation was still valid and it could only investigate a breach of it. The Environment Agency could only investigate a breach of authorisation, but this was still an offence of unauthorised fishing.
205. We have some sympathy with the Fishery Owner’s point of view. However, a theft offence was investigated by the Police alongside the breach of authorisation.
206. The Environment Agency waited for the outcome of the Police investigation into theft before finalising the enforcement decision. Had there been ‘outright criminality’ we would have expected the Environment Agency to have considered a more serious sanction in accordance with its Enforcement and Sanctions guidance. The Police did not pursue a theft case. It was therefore reasonable that the Environment Agency did not choose a sanction for the breach of authorisation based on ‘outright criminality’.
207. The Fishery Owner also says that the Environment Agency should have considered the harm to her and her business when selecting a sanction. In accordance with the Environment Agency’s Enforcement and Sanctions guidance and CICS guidance, harm to people and to business is a relevant consideration and reparations for harm is one of the potential outcomes of an enforcement response.
208. However, when talking about harm, the Fishery Owner refers to the damage the tenants caused to the fishing lodge, shed and banking wall, as well as the loss of fish. She describes these incidents as ones of deliberate damage to her property. Some of these actions took place after the incident we are considering here and are not relevant to the Environment Agency’s considerations (e.g. damage to the fishing lodge, oil burner, shed and the growth of pondweed).
209. The only possible harms related to the incident were the environmental harms and harm to the Fishery Owner’s business arising out of the loss of fish, draining the lake, and possible damage to the banking wall (if it was caused by the fish removal), which then had to be repaired.
210. We have considered elsewhere in this report the Environment Agency’s consideration of the potential environmental harms.
211. We have seen evidence that in its decision documents the Environment Agency considered the evidence available about the value of the fish – both as a loss to The Fishery Owner’s business and as a loss of a bond for the tenancy. The Environment Agency took account of the facts that the Fishery Owner had allowed the tenants to run the fishery as a commercial business and the lack of any agreement over a bond. The Environment Agency also took account of the police investigation that there had been no theft of fish. These were relevant considerations to the loss of amenity.
212. The Environment Agency had assessed the damage to the banking wall and took account of the Police’s findings about the damage to the banking wall. This did not conclude there had been any criminal damage (or therefore any indication there was an intent to disrupt the business). This is also evidence the Environment Agency took relevant considerations about the harm to the Fishery Owner’s business into account.
213. The Environment Agency went on to select a sanction – a warning - which was above advice and guidance but not a formal caution or prosecution. This fits with the Macrory principles as set out in the Environment Agencies guidance, as well as the guidance that where an incident could have been foreseen (as in this case) it would attract a sanction higher than advice and guidance.
214. This is because the Environment Agency’s choice of sanction appears to us to be proportionate to the harm caused (which the Environment Agency assessed as being minimal), is likely to deter repeat offending and is more serious than advice and guidance.
215. We acknowledge that the Fishery Owner feels strongly that all the harms she has clearly experienced were the result of the incident. She feels she should be given reparations for those.
216. We hope have explained in this report, why those injustices were either ones the Environment Agency could not address in any more detail (such as the exact number of fish that were taken) or not ones for the Environment Agency to address at all (such as damage to the Fishery Owner’s property). It is also important to re-iterate that the Environment Agency were not considering the theft of the fish.
217. For all the reasons in this section, we have seen sufficient evidence that the Environment Agency considered the offence in accordance with SAFFA and with its Enforcement and Sanctions Guidance. It took relevant considerations into account and weighed them appropriately before selecting a sanction.
Decision under the Theft Act:
218. The Environment Agency guidance, Theft Act Offences, says the Environment Agency can investigate Theft Act offences where there has been: an offence under the SAFFA and fish have been caught and removed. This was the situation in the incident The Fishery Owner complained about.
219. However, the Environment Agency guidance also says that there should be no presumption that the Environment Agency will prosecute under the Theft Act. It says decisions about prosecutions are based on a number of factors including whether there is sufficient evidence to support a case of theft, and public interest factors.
220. The Environment Agency’s Theft Act Offences guidance does not say whether the Environment Agency would investigate matters already investigated by the Police and decided by them not to meet a sufficient standard for prosecution. However, it seems reasonable for the Environment Agency not to re-investigate offences already investigated to this extent by the Police. The Police is the appropriate authority to investigate theft.
221. During the enforcement investigation the Environment Agency reassured The Fishery Owner that it would investigate if the Police did not. However, it did not give a clear indication of what it considered to be an ‘investigation’ and whether this meant 1) a decision not to investigate or 2) a decision not to prosecute, or both.
222. Within the Environment Agency’s files there are internal emails that show some discussion within the organisation about at what point it would consider a Police investigation to have happened. Even when the Police had more fully investigated, the Environment Agency still undertook to check it concurred with that decision.
223. It was not a failing for the Environment Agency to assure itself of the merits, or otherwise, of a Theft Act investigation in the Fishery Owner’s case. However, if the Environment Agency’s position is that it does not reinvestigate matters already investigated by the Police, this action was unnecessary. The Environment Agency’s records also do not reflect the reasons for its decision.
224. Despite this, we accept that when it explained its final decision to The Fishery Owner, the Environment Agency did clearly tell her that it would not investigate the theft because the police already had. We therefore do not think the lack of clarity within the Environment Agency’s correspondence and internal records is evidence of a shortcoming so serious we would consider it a failing.
225. The Fishery Owner has subsequently made clear to the Environment Agency (and to us) that she believes a theft took place and that the law is in her favour. In particular, she focuses on the fact that she has riparian rights over the fish in the fishery and so any removal of them is theft. She says the Environment Agency should take this into account.
226. The Environment Agency reasonably left the investigation of theft to the Police. The Police appear to have taken a view on the ownership of the fish/fishery that the Fishery Owner does not agree with. That is not a reason for the Environment Agency to become involved – no matter how robust the Fishery Owner’s case might be in law. The Fishery Owner has also said that she thinks the Police and the Environment Agency were conducting a joint investigation into the theft. There is no evidence of that. The Fishery Owner has rightly pursued her complaints about the Police investigation to the IOPC.
Allegations of bias
227. The Ombudsman’s Principles say that public bodies should take decisions that are fair and free from bias.
228. The Fishery Owner has told us that she is concerned that the Environment Agency Officers dealing with the enforcement investigation were biased. She says she suspects that the Officers were friends of the contractor and acted deliberately to allow the actions of the contractor to not be prosecuted.
229. The Fishery Owner made the same allegations to the Environment Agency. In response, the Environment Agency assigned a different officer not previously involved in the issues to the investigation. The Fishery Owner disputes this happened in reality because the officer did not speak to her and she also says he was not impartial because he was known to the officers who issued the authorisation.
230. We recognise the Fishery Owner’s concerns. However, none of those mean that the Officer did not consider the matter properly. The Environment Agency also got a further Officer (from outside the area – we have verified this) to consider the final enforcement decision. The Environment Agency also got a Director from a different section to consider the Fishery
231. The Environment Agency took reasonable action to avoid any potential bias in its investigation.
232. We have found some failings in what the Environment Agency did. The Fishery Owner says that the failings themselves are evidence of bias. We can understand why she might think this.
233. As we will consider below, we cannot see the failings we have found led to or caused the Environment Agency to take a different enforcement decision to the one it did. As such, it would be difficult to say that the failings were motivated by bias toward the contractor.
234. The Fishery Owner has said there is evidence that Officers knew the contractor and alleges they were acting with him. It is clear the Officers did have knowledge of the contractor and that they had some contact with him on other matters. We can understand how this might be perceived by the Fishery Owner. However, the regional nature of the Environment Agency and the relatively small fisheries industry means this is not surprising or, in itself, evidence of bias.
235. The Fishery Owner also says there is evidence the Officers did not provide truthful information to the Police. She says this meant the Police investigation was flawed. She says Environment Agency Officers provided inconsistent accounts about the amount of water that was drained from the lake and about when trout were last introduced to the fishery, among other things.
236. We have considered these issues, but we have not seen evidence that they demonstrate any bias or deliberate intent to mislead on the part of the Environment Agency.
237. The Officer who visited the fishery after the incident said that the level of the lake was said by the Fishery Owner to be about 0.5m depth. We have seen evidence to show the Police recorded the same Officer as saying the depth of the lake was ‘dropped by about a metre’. We recognise that these accounts are slightly different. However, the level to which the water was dropped would seem to have no bearing on the Police’s consideration of whether there was a theft of fish.
238. The date of the last trout introduction to the lake may have had some bearing on an investigation into whether there was a theft of fish. However, this probably would not have been material for the reasons we have already explained about an estimate of what fish were in the lake.
239. We have also seen no evidence about how the Police obtained this information and it is not for us to make a judgement on the Police investigation. The Environment Agency files that we have seen are clear that there were trout introductions in 2013, and the Environment Agency’s own analysis of the fish in the lake includes accurate information about the trout introductions.
240. During our investigation the Fishery Owner also said that because the Environment Agency issued the authorisation and did not withdraw it prior to the incident, it was seeking to downplay the incident. She suggests that a number of Environment Agency Officers participated in this.
241. We have not seen evidence of that. The Environment Agency clearly recognised the part the authorisation played in these events. It compensated The Fishery Owner £10,000 for that. This is a significant payment. It has not sought to ‘cover up’ any potential failings relating to the authorisation.
242. The Fishery Owner has also said that statements made by us in provisional documents shared with her show that the Environment Agency provided us with misleading information. Those statements were made by us based on evidence we received from Environment Agency. They were not the Environment Agency’s statements. None of those statements were integral to our decision and so we cannot agree that they show evidence that the Environment Agency had any intent to mislead.
Injustice arising from the failings we have seen in the enforcement decision
243. We have seen evidence the Environment Agency failed to recognise the event as an incident and respond in accordance with its guidance when the Fishery Owner first reported it.
244. We have also seen that the records the Environment Agency made about the environmental effect of the incident were not detailed enough.
245. We have not seen the failure to act on the incident in accordance with the guidance in the initial stages has led to any injustice to the Fishery Owner.
246. We acknowledge a potential opportunity was lost to return the fish to the fishery or to audit what was taken. We also acknowledge, however, that time was of the essence. We do not know if the Officer would have been able to attend in time to do this.
247. Nevertheless, this might have affected the Environment Agency’s enforcement decision regarding the breach of authorisation. It may have led the Environment Agency to determine there had been a second breach (that fish not listed on the authorisation were taken), or that the nature of the offence was more serious because it would take account of the lost amenity as a result of the fish that were taken. This may or may not have led to a more serious sanction.
248. It would not have had any impact on the decision not to investigate under the Theft Act because that decision was taken on the basis that the Police had already investigated.
249. The Fishery Owner says that if the Environment Agency had decided to prosecute she would have received reparations. However, the decision over whether compensation should have been paid is for the courts and we do not know that would have been an outcome.
250. We cannot say that on balance, it is likely that the Fishery Owner would have received compensation if the Environment Agency’s failings had not occurred.
251. The Fishery Owner has asked that if failings were found the Environment Agency should take its decision again. We have also not seen sufficient evidence to show that if the decision were taken again, it would make any difference.
252. There is no new evidence that would lead the Environment Agency to a different decision. We acknowledge that the Fishery Owner believes that there is evidence regarding environmental harms that could still be considered. However, we have described in the report the reasons why we do not think that is the case.
253. The Fishery Owner also believes a rough estimate could be reached about what fish were in the lake and therefore about what was taken (i.e. to show fish were taken over and above those on the authorisation – creating a second breach and loss of amenity).
254. We do not agree. It is clear the tenants had control of the lake from early 2014 and were taking fish from it from then on. Even if we knew what was in the lake before the tenants arrived, we cannot know how many fish remained at the time of the incident.
255. In addition to this, when we discussed with the Fishery Owner why she believes the tenant acted to remove the fish early, she said this was a hate crime. She said that this was part of actions the tenants took to damage her property and her business. This, alongside the evidence of the contractor, means there is insufficient evidence that the tenant was acting specifically to appropriate valuable fish stocks.
256. We do not underestimate the stress the actions of the tenants have caused the Fishery Owner. However, this is not a matter the Environment Agency can become involved in.
257. We also do not underestimate the upset the Fishery Owner might endure in the knowledge that the there was a possibility, no matter how small that possibility, that the enforcement decision by the Environment Agency might have been different had the failings we identified in this report not occurred.
Our findings in respect of the Fishery Owner’s complaints about the enforcement decision
258. We have found some failings leading to an injustice to the Fishery Owner. However, this is not the injustice claimed. We therefore partly uphold the complaint to the limited extent described above.
Complaint 2: The Fishery Owner complains that the Environment Agency did not meet its obligations to them under The Victims Right to Review scheme
259. The Victims Right to Review (VRR) scheme allows for the victims of crime to request a review of a decision not to prosecute the crime of which they were a victim. It is derived from the European Directive establishing minimum standards on the rights, support and protection of the victims of crime and had to be implemented by November 2015. It says VRR should have a process distinct from a complaint review. The Directive was transposed into the Code of Practice for Victims of Crime, which is UK statutory guidance.
260. The Environment Agency has produced its own guidance in respect of this. It defines a decision not to prosecute as (among other things) one where the Environment Agency’s operational staff has submitted a case to the legal team as one with potential merit for prosecution, but the legal team has declined to prosecute.
261. The Environment Agency’s position is based on a section of the European Directive which says that the right to a review does not apply where there has been an ‘out of court settlement/disposal’. The Environment Agency considers all sanctions, other than, prosecutions as ‘out of court settlements’.
262. Of ‘out of court disposals’, the Code of Practice for the Victims of Crime says that victims have the right to have their views heard in respect of those decisions. It does not say that victims have a right of review of this decision under the VRR scheme.
263. The Fishery Owner says that the Environment Agency’s procedure in not allowing a VRR for ‘out of court disposals’ is not in accordance with the relevant regulations and guidance.
264. It is not for the Ombudsman to determine a whether an organisation’s interpretation of the law is definitively correct – that is for the courts. However, on the basis of the evidence we have seen, it does not appear that the Environment Agency’s guidance is unreasonable.
265. Further, the Fishery Owner’s complaint is essentially that she did not have an independent review of the enforcement decision by an independent lawyer (as would be the case under the VRR).
266. We have seen evidence that (following an earlier investigation by PHSO) a review of the enforcement decision was conducted by an Officer from another region. At the Fishery Owner’s request the matter was reviewed again by the Deputy Director of Legal Services/Chief Prosecutor. The review was conducted in accordance with the complaint procedure. It considered again the evidence relied on and the decisions made.
267. We have not seen any evidence that the review was lacking independence nor that it failed to consider any relevant points. There is no evidence it was not in accordance with the Ombudsman’s Principles. We have not seen sufficient evidence of any failing, or of any injustice to the Fishery Owner arising from the way in which her case was reviewed.