In French criminal law, the freedom of evidence principle applies (Article 426 of the French Code of Criminal Procedure). It is the judge’s responsibility, after conflicting debate, to assess the elements provided and to consequently decide on their firm conviction. It therefore lies with the accredited agent working on behalf of the authority responsible for surveillance of maritime pollution to provide elements liable to ensure this firm conviction. The accused party will dispute the accusation, with the aim of convincing the judge that the evidence is invalid.
In Europe, the forms of evidence accepted by courts vary from one country to another. However the Bonn Agreement introduced the harmonization and common recognition of the six following forms of evidence:
- written declarations
- lateral scanning radar
- oil samples (taken directly from the ship’s wake and onboard during inspection)
- gas phase chromatography and mass spectrometry analysis
- port inspection report.
Other modes of evidence are accepted in certain countries. For example, radio recording and positioning device data are accepted in France. In practice, the validity of a form of evidence is established by case law.
According to article L 218-28 of the French Code of the Environment, the observations of accredited agents, recorded in pollution observation reports, are deemed valid until proven otherwise. Several suspected offenders have been known to dispute the probative value of these pollution observation reports, each time complete with photographs. Thus in 2005, three cases if illegal discharge of oil, relating to the ships Voltaire, Dobrudja and Nova Hollandia, came before the Court of Appeal of Rennes. The court studied the pieces of evidence provided very closely and decided that the pilot’s witness account corroborated by an element of material proof (photograph, sample) was sufficient evidence. The photographs mainly acted as proof of the source of pollution.
In the case of the ship Voltaire, the judges stated that the photographs nullify the hypothesis that the ship was following or crossing the wake of another ship, as a ship which passes through a slick parts it and leaves a clean wake. The quality of the photos does not always allow the judge to see through the eyes of the aerial observer, who is able to assess the slicks more accurately and describe them more coherently. In this case, the witness account of the observer as recorded in the pollution observation report therefore constituted the key element of the accusation. Any uncertainty concerning the geographical location of the incident recorded in the pollution observation report, liable to introduce confusion with another ship, can legitimately be of advantage to the accused party.
The judges of Rennes therefore strongly reaffirmed the case law of the Traquair trial (1994) in these three cases, by considering that the proof of oil discharge is brought by the visual observations of the surveillance agent and the photographs which corroborate them. Furthermore, the judges completed their analysis with the evidence of the intentional nature of the discharge, considering that stopping polluting after it has been acknowledged by an aerial observer characterised the discharge as voluntary, which constituted for them serious environmental damage. It seems, however, that if a captain stops polluting as soon as he is made aware of the pollution it does not prove that the pollution was voluntary.
The judges also considered, in the Voltaire case, that, as the captain was unable to justify the discharge with a reason or incident which had necessitated or caused the discharge detected in the wake of his ship, the discharge can only be presumed voluntary. The court also rejected the first instance acquittal of the Nova Hollandia, based on negligence leading to reckless behaviour, on the basis that the captain was aware of the poor state of the tank causing the leak and that the pollution was foreseeable.
Through these 3 judgements in 2005, the Rennes Court of Appeal demonstrated a clear interpretation of the repressive character of the new French legislation, considering that the repetition of such acts of pollution on maritime routes deserved a strict application of the law.