Investigating Shipping Pollution Violations

1. Investigating Shipping Pollution Violations Pacific Module 14: Post investigation and collation of evidence

2. Aim • To describe the tasks required to prepare an evidence brief or case report

3. Overview • Compilation of relevant facts and evidence • Forms basis for prosecuting alleged offence • Two-fold purpose: • Acquaint Crown/Prosecutor with details of alleged offence • Disclose evidence to defendant’s legal team • Utilise relevant domestic procedures or guidelines for preparation of Evidence Brief/Case Report

4. Evidence Brief • Introduction • Overview Statement • Scope of the Investigation • Body • Analysis of Evidence • Conclusion • Options • Considerations • Recommendations • Appendices

5. Introduction • Overview Statement • Summary form • Issue or subject of the investigation • Main outcomes of the investigation • People/ companies/ vessels involved • Main recommendations • Legislation and offences involved • Scope of Investigation • Summary Statement • Investigating team and investigative authority • Investigative timeframe and time on task • Sources of and limits to information • Main informants to the investigation

6. Body • Analysis of Evidence • Elements of a breach of the legislation • Chronological account of the investigation • References to all evidence (in Appendix) • Reference to specific procedures, standards, codes, policies and legislation • Sufficiency of evidence (e.g. prime facie case) • Summary listing of outcomes

7. Conclusion (1) • Options • Options and arguments for further action • Investigator’s preferred option • Considerations • Circumstances with respect to: • Special claims and mitigation • History • Impacts • Recommendations • Actions, responsibility and timing • Summary listing of recommendations

8. Conclusion (2) • Appendices • Copy of each Appendices referenced • Statement of Facts • Evidence (witness statements, interview reports) • Witness List • Vessel Documentation • List of Exhibits • Other Relevant Information

9. Information on Accused • Where the accused is an individual • Name • Address • Date of birth • Family status • Nationality • Employment history • Level of cooperation • Past compliance record • Other relevant information Note that where the individual is a foreign national some information may not be available or necessary.

10. Information on Accused • Where the accused is a corporation • Name and address • Location of registry • Legal registered name • IMO Company number • Status (e.g. in good standing?) • Stated purpose of company • Past compliance record • Names of directors and officers • Financial viability • Other relevant information • Shipowner, Charterer, Ship Manager etc

11. Information on the Vessel • Vessel information • Name • Type • Year built/length/breadth • Flag State • IMO number • Gross tonnage • Name of owner(s) • Name of managers/ charterers /ISM manager • Past compliance record • Port State Control History • Other relevant information (such as general operation of the vessel and typical voyages undertaken)

12. Summary • Purpose is to establish ‘prima facie’ case • Detailed and factual chronology of events

13. Purpose of Legislation • Purpose is to fully inform Crown/Prosecutor about the detailed nature of relevant legislation • For example: • ‘Regulatory Impact Assessment Statements’ contain information on purpose of legislation

14. Analysis of Offence • Purpose is to present facts in issue and evidence to validate elements of offence (sometimes called Evidence Matrix) • Information required: • Detailed breakdown of alleged offence • Details of evidence required to prove element(s) • Details of possible legal defence

15. Relevant Jurisprudence • Purpose is to provide recent and applicable court decisions to serve as Crown/Prosecutor guideline • Information required: • Past court decisions in similar cases • Degree of environmental impact • Accompanying Regulatory Impact Assessment Statement (if applicable)

16. Draft Charge • Purpose is to prepare for Crown/Prosecutor approval a draft copy of charge(s) that potentially could be served upon the offender

17. List of Witnesses • Purpose is to help Crown/Prosecutor estimate length of time required for trial • Information required: • List of all witnesses who may need to testify • Reference to page number in witness package

18. Witness Package • Purpose is to provide all pertinent information including involvement, and what evidence the witness will present • Information required • Person’s name and contact details • Every written statement made by the witness • Document outlining what the witness observed, perceived, said, and/or did • For expert witnesses • Reports • Curriculum vitae • Anticipated evidence

19. List of Exhibits • An exhibit register may be sufficient • Information required for each item • Details of how the item came into investigators possession • If applicable, who seized the item and under the auspices of what authority • If applicable, details regarding chain of custody • Include any scientific or forensic reports obtained in the course of the investigation

20. Statements by Accused • Purpose is to alert Crown/Prosecutor to the presence of any statements made by the accused • Possible sources of statements • Officer’s notebook • Witness statements • Interview reports

21. Sentencing Information • Purpose is to provide Crown/Prosecutor with a basis for sentencing or penalty phase of the trial • Information may include: • Summary of environmental impact or damage • Associated costs to mitigate such damages • Details of available sanctions (e.g. fines, orders) • Details of previous convictions (if applicable)

22. Language Considerations • Purpose is to alert the court that an accused/ witness may not speak an official language • For example: • Section 14 of the Canadian Charter of Rights and Freedoms guarantees individuals the right to have an interpreter (if required)

23. Attachments/ Enclosures • Purpose is to provide any supporting information not to be used as evidence • Such information could include • Aerial photographs • Maps • Charts • Graphs

24. Crown/Prosecutor Education • Most Crown/Prosecutor offices are generalists and have no knowledge of shipping terminology • Educate them by preparing information to explain shipping terminology in lay terms • Examples: • Bow, stern, bridge, aft, port, starboard • Different types of vessels (describe the vessel type involved in the pollution) • Waste oil generation and disposal

25. Questions?