Considerable evidence demonstrates the harmful effects of forever chemicals (PFAS). They are omnipresent, bioaccumulative and believed to be carcinogenic.  Nevertheless, the legislative response to this growing concern has been slow and inadequate. The new legislation and proposed legislation as well as remedies available to persons affected, are not discussed here.

The statutory public nuisance offence

In the absence of comprehensive legislation on this subject, this article considers the possibility of plugging the regulatory gap by using the latest version of the public nuisance offence.

The common law offence of public nuisance was abolished on 28 June 2022 and replaced by section 78 of the Police, Crime, Sentencing and Courts Act 2022 (except in relation to acts and omissions committed before that date).  That section creates a statutory offence of intentionally or recklessly causing a public nuisance.

For present purposes, that is doing an act or omitting to do an act which a person is legally required to do if the act or omission creates a risk of, or causes, serious harm to the public or a section of the public.

The caveat is that the person must intend that the act or omission will have, or be reckless as to whether it will have, such a consequence.  ‘Serious harm’ is defined (so far as relevant) as  death, personal injury or disease, loss of or damage to property or serious distress, serious annoyance,  serious inconvenience or serious loss of amenity.

PFAS potentially affect all people and the environment and so the criterion of serious harm to the public or a section of the public should be satisfied.

The penalty for this offence is an unlimited fine and/or up to 10 years’ imprisonment on conviction by the Crown Court and the general limit for imprisonment on conviction by the magistrates’ court  which is currently 12 months.

The defence of reasonable excuse

A major change from the common law public nuisance offence is the new defence that there was a ‘reasonable excuse’ for the act or omission in question.  ‘Reasonable excuse’ is not defined in section 78 but will no doubt involve a balance between the commercial interests of the defendant and some consumers on one hand, and the health of the public and protection of the environment on the other.  Since no human rights issues are involved with regard to PFAS, the caselaw on proportionality should not be relevant.  Matters which courts are likely to take into account include:

• Are PFAS necessary or merely desirable in the manufacturing process?

• The availability, cost and effectiveness of alternatives

• Steps taken by the defendant to identify and source alternatives.  Evidence indicates that alternatives are available in many cases.

• Whether the PFAS in question are banned or restricted under legislation currently in force. However, the status of PFAS under such legislation does not necessarily determine the position in relation to public nuisance, although it may influence the decision of the court as to whether there is or can be a public nuisance in the particular circumstances.  The existence of public nuisance as an offence indicates that Parliament accepts that other legislation may not be adequate to deal with all polluting activities which can affect the public.  In that case, public nuisance may fill the void.

Points to note

Several points need to be highlighted in relation to the statutory public nuisance offence:

1.  Liability for the tort of public nuisance is unaffected by the abolition of the common law offence, although a claimant will have to prove that the elements of the common law offence are established.  However, it is likely to be difficult to establish that particular harm was caused by particular PFAS in the absence of any ‘fingerprint’ which clearly links the two.
2. A prosecutor can choose to proceed under other legislation which covers the same facts as statutory public nuisance.  So if PFAS were manufactured or sold in defiance of a specific ban under REACH (Regulation, Evaluation, Authorisation and Restriction of Chemicals which regulates chemicals placed on the market) , action could be taken under that legislation, despite the possibility that it may also be a public nuisance.
3. The statutory public nuisance offence does not apply to any act or omission committed before section 78 came into force on 28 June 2022.  Any such matters could still be prosecuted as a common law public nuisance offence if it applies.
4. If the act or omission began before 28 June 2022 and continued after that date, again the statutory public nuisance offence does not (but the common law public nuisance offence does) apply.  The question is whether continuing manufacture or use of PFAS is a continuing act or a series of separate actions.  By analogy with the Supreme Court decision in Jalla v Shell [2023] UKSC 16 (a private nuisance claim for oil pollution damage), the better answer is that these are separate actions.  On that basis, the continued manufacture and/or use of PFAS after 28 June 2022 could be prosecuted as a statutory public nuisance, even when those activities commenced before that date.

Injunctions

Injunctions can be granted to prohibit the commission of a criminal offence, and it is possible that they could be deployed in the case of a statutory public nuisance related to PFAS.

In such cases, defendants may be granted a delay before the injunction takes effect in order to give them the opportunity to change their operations without undue damage to the business.

The requirement of locus standi has been less stringently applied in recent years and in any case demonstrating sufficient interest should not be difficult given that all people are likely to be affected by PFAS.

Discussion

There is no certainty as to the approach the courts would take as to whether a statutory public nuisance offence has been committed in relation to the manufacture or use of PFAS.  That is likely to depend on the facts of individual cases and so the choice of which cases to pursue may be critical.  In any case, the possibility of such proceedings may be a source of hope to campaigners against forever chemicals and an encouragement for businesses to seek less harmful alternatives.

For examples of the European Environment Agency and UK government’s links on this subject see:

https://www.eea.europa.eu/en/newsroom/news/impacts-of-pfas-polymers

https://www.gov.uk/government/publications/pfas-plan/pfas-plan-building-a-safer-future-together

About the Author

Andrew Waite is a solicitor and specialist in environmental, health and safety and public law, advising on regulatory and liability issues for a broad range of industries.

He defends prosecutions for breaches of environmental and health and safety legislation, deals with regulatory appeals, judicial reviews and civil litigation and advises on environmental issues relating to projects and transactions. He deals with all the main areas of environmental law including waste, energy, nuclear, contaminated land, pollution controls, environmental permitting, water rights, flooding, climate change and nature conservation.

Prospect is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, insurance and risk management specialists, and finance experts.

This article remains the copyright property of Prospect Law Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.