Businesses facing a potential prosecution by the Environment Agency may wish to consider whether the offer of an Enforcement Undertaking would be a viable alternative.

It can be a lengthy process between receipt of an initial letter from the Environment Agency, legal review of all relevant internal company documents and records, and assessment of the relevant evidence and whether or not it would justify a prosecution by the Agency.

It may involve interviews under caution, generally with a senior officer of the company with sufficient knowledge of the events, and duly authorised to speak on the company’s behalf. It will require review of the Environment Agency’s Enforcement and Sanctions Policy, and its published criteria for accepting Enforcement Undertakings instead of proceeding with a prosecution. It will certainly require careful preparation of the case for offering an Enforcement Undertaking, and sometimes lengthy correspondence on points of detail before a decision is reached by the Environment Agency.