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Sentencing guidance for environmental offences

Lady Justice ( Iustitia ) Print publication

08/04/2014

The Sentencing Council has published its ‘Definitive Guideline’ for the sentencing of environmental offences (Guideline), which indicates that harsher penalties will be issued to companies that are convicted of environmental crime. This is the first time that a sentencing guideline has been produced for these types of offences.

The Guideline applies to various offences under the Environmental Protection Act 1990, including the unauthorised deposit, treatment or disposal of waste. The Guideline also relates to offences committed under the Environmental Permitting (England and Wales) Regulations 2010, and will be relevant where a regulated facility is found to be operating without an environmental permit or in breach of a permit condition. Nuisance offences involving the creation and escape of noise, smoke, dust or odour will also fall within the scope of the Guideline.

The Guideline officially comes into force on 1 July 2014, although we expect that its content will influence the approach adopted by judges and magistrates in sentencing environmental offences before this date. A full copy of the guidelines can be found here.

Analysis

The Sentencing Council consulted upon a draft version of the Guideline last year following concerns that environmental offences were being inconsistently sentenced by the courts. Specifically, a lack of familiarity among magistrates with environmental offences and limited guidance upon environmental sentencing were cited as reasons for courts lacking confidence in determining the level of fines to be issued.

The Guideline seeks to resolve these issues by inviting the court to categorise each environmental offence by reference to the degree of environmental harm caused, and an offender’s culpability in creating this harm (or risk of harm). The court is then directed to a starting point and range for each offence categorisation, which for corporate defendants will depend upon the size and turnover of the company. Any mitigating and aggravating features of the offence that ought to adjust the sentence within that range will then be considered, following which the specific amount of any fine will be determined.

The Guideline also provides for a higher level of scrutiny of company accounts in establishing the correct classification of that organisation for sentencing purposes. A company will now be expected to provide the court with comprehensive accounts for the last three years so as to enable judges to make an accurate assessment of its financial status, and of its ability to pay any fines that are issued against it.

Comment

The new Guideline encourages the courts to issue greater economic punishments to companies which are found to have committed an environmental offence, and will have a significant impact on the amount of penalties imposed. There is a clear emphasis in the document for fines to be set at a high level so as to stress the seriousness of such matters upon directors and shareholders.

It is important to note that the starting point for fines against corporate offenders under the Guideline can amount to £3 million, and greater fines may be issued against larger organisations which have a turnover greatly in excess of this figure. The Sentencing Council also believes that the Guideline will encourage magistrates to make greater use of the highest levels of fines available.

In light of the potential for increased economic penalties, it is more advisable than ever for companies to obtain professional advice as soon as they are threatened with any enforcement action by the regulator. It is also increasingly important for environmental operators to review the conditions of their environmental permits, and to apply to vary existing conditions that they consider to be unreasonable so that they do not commit an offence.

Walker Morris has specialist expertise and experience in advising private and public sector clients on all aspects of environmental law, including permitting and regulatory enforcement. We would encourage companies to review their existing practices and environmental management systems, and to seek advice on their compliance with existing laws or regulatory obligations where necessary.

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