United Kingdom

Criminal Law and Climate Change

Executive summary

Criminal law is far from the primary legal mechanism for addressing climate change, but there are still some relevant intersections. Climate change may increase the rate of crime itself, and the net zero transition is creating new assets and activities that may be affected by criminal behaviour. Criminal law can both enable and thwart certain types of climate action, and criminal penalties may play a small role in mitigating damage to the climate. Crime is therefore one of many social issues that interacts with climate change. Overall, climate change is having an indirect impact on criminal law, and criminal law is one of many legal areas that may see an increased, albeit likely still minor, focus on climate change.

How climate change is impacting criminal law

Connection between physical climate impacts and crime

Studies suggest a causal link between temperature and the incidence of crime.[1] In broad terms, higher temperatures correlate with criminal conduct and in particular, crimes of aggression and violence.[2] Related to this, warm weather leads to greater alcohol consumption which can result in more violence and economic crimes such as burglaries.[3] Data from London’s Metropolitan Police Service in 2018 shows the correlation between crime and an increase in temperature. It indicates violent crime was 14% higher when the temperature was 20 degrees Celsius compared to the position at 10 degrees Celsius or below.[4] Increased temperature can also lower cognitive function, increase heart rate, cause irritation and raise testosterone.[5] Data has also linked higher temperatures with sexual assaults.[6]

Some analysis suggests that the cumulative impact of higher temperatures in the US from 2010 to 2099 could lead to ‘an additional 35,000 murders, 216,000 cases of rape, 1.6 million aggravated assaults, 2.4 million simple assaults, 409,000 robberies, 3.1 million burglaries, 3.8 million cases of larceny, and 1.4 million cases of vehicle theft, compared to the total number of offences that would have occurred between the years 2010 and 2099 in the absence of climate change’.[7] It is therefore possible that the UK could experience an increase in criminal activity as the temperature becomes more extreme. Though climate change may be a factor in crime rates, it is very unlikely that climate-related impact would be successfully relied on as defences to crimes.

Protests and activism

Climate change has led to a large number of protests in the UK, which can give rise to criminal charges. In 2019, more than 1,100 Extinction rebellion protestors, who took part in sit-ins at airports and train stations or blocked streets, were arrested. Of those charged and convicted, the offences included highway obstruction (Section 137 of the Highways Act 1980) and a range of public order offences and criminal damage. A number of those convictions have now been quashed. For example, in 2021, Amelia Halls had her conviction for highway obstruction during a protest at City of London Airport in 2019 quashed as a result of the Supreme Court ruling in the case of Ziegler.[8] In short, that case established that the right to protest had to be weighed properly when assessing whether she was guilty of blocking the road.

Ziegler[9] concerned the right to freedom of expression and freedom of peaceful assembly under Articles 10 and 11 of the European Convention on Human rights (ECHR) and its role in the criminal law of England and Wales. Protestors in that case had targeted the Defence and Security Arms Fair, and were charged with the wilful obstruction of a highway without lawful authority or excuse contrary to s.137(1) of the Highways Act 1980. In the Magistrates’ Court, the individuals were acquitted on the basis they had a “lawful excuse”, namely they were reasonably exercising their right to freedom of speech and to freedom of assembly. The prosecutor appealed to the Divisional Court, where the convictions were reinstated on the basis the Magistrates’ Court had failed to strike a fair balance between the interests of the protestors and members of the public whose lawful activities were disrupted.[10]

The Supreme Court allowed the appeal by a majority. The Court held that the offence must be read compatibly with the ECHR and the court must determine whether the public authority’s interference with the protestors’ rights was proportionate, which it was not in this case. Of relevance was the fact that it was a peaceful gathering, did not give rise to disorder and did not involve the commission of any other offence apart from s.137. This principle has not been applied widely and may have been limited by subsequent cases,[11] but may nonetheless protect climate-related protests that cause minimal damage or disruption.

The Public Order Act 2023, which received Royal Assent in May 2023, has introduced a number of extended powers for police to ‘tackle dangerous and highly disruptive tactic, used by a small minority of protestors, to wreak havoc for people going about their daily lives.’ [12] Evidence of police using these powers is growing, with the Metropolitan police using section 7 of the act to order an immediate end to a Just Stop Oil protest in October 2023. Where previously police utilised section 12 of the act, giving them authority to place conditions on a protest, this newfound ability to put an end to demonstrations exemplifies wider escalation of efforts to tackle climate protesting. 

Financial crimes, fraud and climate policy

There is an emerging connection between climate-related policies and fraud. One important example is in emissions trading schemes[12] which are prone to fraud unless properly regulated.[13] The EU Emissions Trading System (ETS) has experienced numerous frauds related to carbon permits, their theft and the recycling of carbon credits, which has cost more than 200 million Euros.[14] In addition to risks in compliance emissions trading systems, these risks may also be relevant to the voluntary carbon market, which involves the voluntary purchase and sale of ‘carbon credits’ outside of a regulated carbon pricing system. The UK Financial Conduct Authority has included some information about carbon credit trading scams on its website, stating that scams will typically be instigated through the offering of carbon credit certificates, or an opportunity to directly invest in a green scheme or project that generates carbon credits as a return on the investment. As emissions trading extends to cover more sectors in the UK and the voluntary carbon market grows, these risks may become more salient.

Due to the potential for decarbonisation projects to become lucrative,[15] there is scope for fraudsters to sell products using false information. Though ‘greenwashing’ issues tend not to reach the level of criminal conduct, this has been the case in egregious instances. One example is the ‘Volkswagen emissions scandal’, where the USA’s Environmental Protection Agency (EPA) found that many VW cars were sold in America with a ‘defeat device’ or software which could detect whether they were being tested and change the performance to show false ‘improved’ results (i.e. lower emissions) when this was not the case.[16] There have been a number of convictions in the USA and Germany of high ranking officials in relation to the scandal, which may indicate potential consequences in the UK if a similar scandal emerges.

The Covid-19 pandemic provided a further example of the exploitation of an emergency situation by criminals. In that context, the manufacture of PPE, Covid tests and ventilators fell victim to criminal gangs who disrupted the flow of those materials by corruption or falsifying medical products.[17] It is therefore possible that net zero ambitions will provide fertile ground for opportunists who operate in states which have weak legal systems, but equally countries with energy sectors largely dependent on fossil fuels seeking to transition to clean energy.[18]

Environmental Defenders

Whilst this scenario may not immediately apply to the UK, there is an increasing backlash against ‘environmental defenders’[19] resulting in public admonition, harassment and in the most extreme cases murder.[20] These cases have led to greater international efforts to protect environmental campaigners.[21] Global Witness reported that in 2018, 164 environmental defenders were murdered,[22]a number that is increasing annually[23]. There may also be negative consequences from the criminal justice system itself, such as criminal charges, restriction of rights and false prosecutions.[24] The concern is such internationally that the UN has recognised and is calling for greater protection of environmental defenders.[25]

The subject suffers from a lack of research.[26] Although there are relevant reports and analyses[27] a complete picture of the plight of environmental defenders does not yet exist. The Environmental Justice Atlas is one database compiled in 2011 which unites academics and civil society groups to identify environmental conflicts around the world and the actors involved in securing environmental justice.[28] Key sectors where conflict emerged included the mining sector (21% of all cases), the energy sector (17%), biomass and land use (15%), and water management such as dams (14%).[29] Although most extreme cases involve jurisdictions with weaker governance and enforcement than the UK, these issues have and will affect British nationals abroad.[30]

How criminal law can help drive the net zero transition

Environmental crimes

Breaching climate-related laws in the UK tends to come with civil penalties, but some actions which negatively impact the environment are criminal offences. Environmental crimes are generally enforced by the Environment Agency. Many offences aim to prevent damage to specific natural features such as wildlife and waterways. As explored in the environmental law section of this Atlas, climate change is closely linked with other environmental issues so avoiding damage to natural features may also help with climate mitigation or adaptation efforts. Some climate-specific regulations, such as those governing the release of fluorinated greenhouse gases, may also carry criminal penalties. Although, on the whole, environmental crimes only capture a small volume of greenhouse gases, they remain an important backstop to prevent actions that significantly damage the environment and may have a broader deterrent effect on polluters.

There have been some calls, at both a domestic and international level, to broaden the range of environmentally harmful conduct that is considered criminal through laws against ‘ecocide’.[31] Many of these calls have targeted international criminal law, though there have also been proposals to amend UK legislation so that the governments advocate for this change at an international level. In September 2023, Camden became the first UK council to call for the crime of ecocide to be recognised by international law, having gained unanimous cross-party support. In November 2023, proposals for a Members’ Bill in Scottish Parliament were launched in Scotland, asking people to support an ecocide prevention law. It is unclear whether such proposals will success in the UK or internationally.

[1] Michael J. Lynch and others, ‘The Climate Change-Temperature-Crime Hypothesis: Evidence from a Sample of 15 Large US Cities, 2002 to 2015’ (2022) 66(4) International Journal of Offender Therapy and Comparative Criminology 430.

[2]  Siddhartha Bandyopadhyay and Francis Pope, ‘Climate Change and criminality: What’s the link?’ (Birmingham Business School Blog, 2021) <https://blog.bham.ac.uk/business-school/2021/11/22/climate-change-and-criminality-whats-the-link/>.

[3] Ibid; BBC Reality Check, ‘Heatwave: Is there more crime in hot weather?’ (BBC News, 19 July 2018) <https://www.bbc.com/news/uk-44821796>.

[4] Ibid.

[5] Ibid.

[6] Paul Butke and Scott Sheridan, ‘An Analysis of the Relationship between Weather and Aggressive Crime in Cleveland, Ohio’ (2010) 2(2) Weather, Climate and Society 127, 129.

[7] Matthew Ranson, ‘Crime, Weather, and Climate Change’ (2012). Harvard Kennedy School M-RCBG Associate Working Paper Series No. 8.

[8] Director of Public Prosecutions (Respondent) v Ziegler and others (Appellants) [2021] UKSC 23.

[9] Ibid.

[10] Ibid.

[11] See e.g. Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin).

[12] Mary Alice Young, and Deborah Adkins, ‘The ascent of green crime: Exploring the nexus between the net zero transition and organized crime’(2022) 29(3) Journal of Financial Crime 789.

[13] Clifford Curtis Williams, ‘A burning desire: The need for anti-money laundering regulations in carbon emissions trading schemes to combat emerging criminal typologies’(2019) 16(4) Journal of Money Laundering Control

[14] Vera Eckert and Alexander Huebner, ‘Six stand trial in carbon fraud case in Germany’, (Reuters, 15 June 2021) <https://www.reuters.com/article/uk-germany-carbon-fraud/six-stand-trial-in-carbon-fraud-case-in-germany-idUKTRE77E41J20110815>.

[15] Young et al., (n 12).

[16] Russell Hotten, ‘Volkswagen: The scandal explained’ (BBC, 10 December 2015). <https://www.bbc.com/news/business-34324772>.

[17] Robert Muggah, ‘The COVID-19 Pandemic and the Shifting Opportunity Structure of Organized Crime’ in P. Bourbeau, J. Marcoux, and B. A. Ackerly (Eds.), A Multidisciplinary Approach to Pandemics (Oxford University Press (2022).

[18] Marcela López-Vallejo and María del Pilar Fuerte-Celis, ‘Hybrid Governance in Northeastern Mexico Crime, Violence, and Legal-Illegal Energy Markets’ (2021) 48(236) Latin American Perspectives.

[19] Nathalie Butt, Frances Lambrick, Mary Menton and Anna Renwick, ‘The supply chain of violence’ (2019) 2 Nature Sustainability 742.

[20] See e.g. Tom Phillips and Andrew Downie ‘Murdered British journalist Dom Phillips laid to rest in the Amazon’ (The Guardian, 26 June 2022). https://www.theguardian.com/world/2022/jun/26/murdered-british-journalist-dom-phillips-laid-to-rest-in-brazil; and Josie Cohen, ‘Five years since the murder of our friend Chut Wutty’, (Global Witness, 2017). https://www.globalwitness.org/en/blog/five-years-murder-our-friend-chut-wutty/.

[21] Nick Middledorp and Phillippe Le Billon, ‘Deadly environmental governance: authoritarianism, eco-populism, and the repression of environmental and land defenders’ (2019) 109(2) Ann. Am. Assoc. Geogr 324.

[22] Global Witness, ‘Enemies of the state? How government and business silence land and environmental defenders’ (Global Witness, 2019). <https://www.globalwitness.org/en/campaigns/environmental-activists/enemies-state/>.

[23] Butt, Lambrick, Menton and Renwick (n 19).

[24] Arnim Scheidel, Daniela Del Bene, Juan Liu, Grettel Navas, Sara Mingorría, Federico Demaria, Sofía Avila, Brototi Roy, Irmak Ertör, Leah Temper and Joan Martínez-Alier, ‘Environmental conflicts and defenders: A global overview’ (2020) 63 Global Environmental Change.

[25] Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazu Agreement); and United Nations Environment Programme, ‘Promoting Greater Protection for Environmental Defenders Policy’ (UNEP, 2018).

[26] Butt, Lambrick, Menton and Renwick (n 19). Pages 2 and 33.

[27] Ibid.

[28] Ibid; Leah Temper and Daniela Del Bene ‘Transforming knowledge creation for environmental and epistemic justice’ (2016) 20 Curr. Opin. Environ. Sustain. 41.

[29] Ibid.

[30] Phillips and Downie (n 20).

[31] Jojo Mehta, ‘Ecocide as an International Crime’ (UNA-UK, 2021). <https://una.org.uk/magazine/2021-1/ecocide-international-crime>.