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Court of Appeal judgment shows environmental offences will be taken seriously by the Courts

dirty_water_in_the_river_water_pollution Print publication

04/06/2021

A Court of Appeal judgment highlights the issues which arise when sentencing environmental offences, and shows that environmental offending will be taken seriously by the Courts.

R v Lawrence concerned convictions for a number of offences contained in the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010 relating to two fires at the premises of a skip hire company outside Kidderminster. The site was next to a canal and adjacent to a site of special scientific interest (SSSI). The defendant was the operations director of the family business which operated the site.

As a result of financial difficulties, the quantity of unsaleable waste kept on the site built up and, in December 2012, a fire broke out which took nine days to extinguish. The water required to fight the fire mixed with rain water and contaminants from the waste; the Environment Agency was able to prevent this entering the SSSI but polluted water was diverted into the canal.

A second fire broke out in June 2013 and continued to burn for more than a month, and around 5,000 tonnes of waste burned. A large quantity of polluted water ran into the canal and killed around 3,000 fish. The smoke produced had a ‘significant adverse effect’ on air quality in the local area which included a primary and a secondary school.

The Sentencing Council publishes definitive guidance to assist the Court in sentencing both individuals and organisations found guilty of environmental criminal offences. The Court is required to follow sentencing guidance unless satisfied that it would be contrary to the interests of justice to do so.

The guidance requires the Court to take a number of steps to reach a sentence. It must first make an assessment of the offender’s culpability (i.e. blameworthiness) as either deliberate, reckless, negligent or low. The Court must then make an assessment of harm caused by the offence; harm is categorised into categories 1-4 in descending levels of seriousness. Examples of category 2 harm are given in the guidance as ‘significant adverse effect or damage to air or water quality’ and ‘significant adverse effect on human health or quality of life, animal health or flora’. The guidance then requires the Court to assess aggravating and mitigating factors, apply any discount for an early guilty plea, and make an assessment as to the totality of offending.

In relation to the 2012 fire, Mr Lawrence was sentenced to a fine of £270 on the basis that the harm fell into category 3 and his culpability fell into the ‘negligent’ category. In relation to the 2013 fire, the Court found that the culpability was ‘highly reckless’ and that the harm fell into category 2, but that the cumulative effect of the category 2 harm features had the potential to raise the overall harm into category 1. The sentencing judge then went on to give weight to aggravating factors including the first fire, the location close to schools, the SSSI and the canal. Mitigating factors were also considered and a sentence of 9 months imprisonment (suspended for two years) and 180 hours unpaid work was imposed.

The basis of Mr Lawrence’s appeal was that the sentencing judge had been wrong to aggregate the features of harm in relation to the second fire in order to move the harm into category 1. This, he argued, had led the judge to impose too high a sentence.

These arguments were dismissed by the Court of Appeal. Giving the judgment of the Court, HHJ Joseph QC said that there had been ‘ample findings’ made by the sentencing judge to justify the categorisation of harm he had made. She went on to add that ‘no one committing [environmental offences] should think that multiple aspects of his/her wrongdoing, however grave, will receive no punishment simply because they all fall within one category of harm’. The Court also found that the Sentencing Council’s guidance on environmental offences is not constrained by the Environment Agency’s Common Incident Classification Scheme, despite this being the source of some of the guidance.

Accordingly, the appeal was dismissed. The Court commented that whether by application of the sentencing guidelines, or taking a broader view of Mr Lawrence’s total wrongdoing, the sentence could not be described ‘in any way as either manifestly excessive or wrong in principle’, adding that ‘bearing in mind the utmost importance of protecting the environment’, some judges might not have suspended the custodial element of the sentence.

The key lessons for businesses from this case are:

  1. Even when environmental crimes are committed on company premises, individual officers of a company can face prosecution and, on conviction, custodial penalties; and
  2. Sentencing guidance will not act as a straitjacket to prevent the Court recognising the magnitude of the harm caused to the environment when passing sentence.

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