ILLEGAL LOGGING: USE OF CIVIL AND CRIMINAL LAW TO ADDRESS IMPORTS OF ILLEGALLY LOGGED TIMBER - PowerPoint PPT Presentation

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ILLEGAL LOGGING: USE OF CIVIL AND CRIMINAL LAW TO ADDRESS IMPORTS OF ILLEGALLY LOGGED TIMBER

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ILLEGAL LOGGING: USE OF CIVIL AND CRIMINAL LAW TO ADDRESS IMPORTS OF ILLEGALLY LOGGED TIMBER ... Prohibits import into the USA of fish and wildlife 'taken, possessed, ... – PowerPoint PPT presentation

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Title: ILLEGAL LOGGING: USE OF CIVIL AND CRIMINAL LAW TO ADDRESS IMPORTS OF ILLEGALLY LOGGED TIMBER


1
ILLEGAL LOGGING USE OF CIVIL AND CRIMINAL LAW TO
ADDRESS IMPORTS OF ILLEGALLY LOGGED TIMBER
  • KATE COOK
  • MATRIX CHAMBERS

2
SOME PRELIMINARY ISSUES
  • Defining illegally logged timber
  • Identification of timber products
  • Tracking the movement of timber consignments

3
Defining illegally logged timber
  • Action Plan timber harvested in violation of
    national laws
  • Wide range of illegal practices
  • Article 2 of Regulation 2173/2005 legally
    produced timber is that produced from timber
    which is legally harvested/legally imported in
    accordance with national laws (as set out in
    Partnership Agreement)

4
Identification of timber products
  • Limited coverage of FLEGT licensing scheme
    roundwood and rough sawnwood
  • Difficulties with plywood
  • Contrast with CITES regime

5
Tracking Timber Movements
  • Need for chain of custody
  • or
  • Excellent intelligence!

6
Criminal Law Handling Stolen Goods
  • Section 22 of the Theft Act 1968 A person
    handles stolen goods if (otherwise than in the
    course of stealing) knowing or believing them to
    be stolen goods he dishonestly receives the
    goods, or dishonestly undertakes or assists in
    their retention, removal or disposal or
    realisation by of for the benefit of another
    person, or if he arranges to do so
  • Section 24 of the Theft Act the provisions of
    the Act relating to stolen goods apply to goods
    stolen abroad

7
Goods
  • Includes things severed from the land by
    stealing, section 34(2)(b) of the TA
  • Section 4(2) TA a person cannot steal things
    severed from land except when he is not in
    possession of the land and appropriates anything
    by severing it etc

8
Goods stolen abroad
  • Section 24(1) TA
  • Prosecution must show that the harvesting
    constituted the offence of stealing under local
    law
  • The Prosecution must prove this-inference not
    sufficient
  • Criminal Justice Act 1993 Handling stolen goods
    is a Group A offence jurisdiction provided any
    of the relevant events occurred in England and
    Wales

9
Knowledge and Intent
  • Prosecution must prove that the accused knew or
    believed the goods to be stolen
  • Mere suspicion is not enough
  • Nelsonian indifference unlikely to be sufficient

10
Double jeopardy
  • Previous acquittal or conviction for the same
    offence is a bar to prosecution provided the
    earlier adjudication results from a valid process
    by a competent court
  • NB stealing and handling are alternative charges

11
Civil Law Conversion
  • Torts (Interference with Goods Act) 1977
  • Conversion involves an infringement of the rights
    of possession of the owner of the goods
  • 3 elements (1) defendants conduct inconsistent
    with owners rights (2) conduct deliberate and
    not accidental (3) conduct so extensive an
    encroachment as to exclude owner from possession
    and use of goods

12
Issues
  • Strict liability not necessary to show fraud or
    dishonesty on the part of the person dealing with
    the goods
  • Conflict of laws relevant foreign
    element-which is the applicable law to determine
    (1) right of possession (2) the tort claim?
  • Who may sue either person in possession or with
    an immediate right to possession
  • Who may be sued anyone dealing with the goods eg
    importer (subject to loss of title)
  • Remedies damages/delivery up

13
US Lacey Act
  • Prohibits import into the USA of fish and
    wildlife taken, possessed, transported or sold
    in violation of any foreign law
  • Foreign law must be sufficient nexus to wildlife
    protection (but would include measures with
    several purposes)

14
ECHR issues?
  • Article 7 ECHR an offence my be clearly
    described by law-not an exacting standard
  • Article 6 ECHR expert on foreign law must be
    treated as prosecution witness
  • A1P1 interference with property rights
    (deprivation) but justified in the public
    interest?
  • Proportionality (of measure and the underlying
    foreign law)

15
Community Competence
  • No general competence in criminal law matters
    but
  • Case C 176/03 Commission v Council
  • when the application of effective,
    proportionate and dissuasive criminal
    penaltiesis an essential measure for combating
    serious environmental offences Community can
    take measures relating to MS criminal law (para
    48)
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