Environmental Sentencing Guidelines: Consistently Packing A Punch

Nathan Holden, Freeths, Nottingham

Prosecution for an environmental offence can have serious consequences for any business organisation or individual, not only in terms of criminal sanction (as seen below) but also damage to the organisation’s/individual’s reputation and their future relationship with environmental regulators.
Since 1 July 2014, the courts have applied tough sentencing guidelines which were introduced with the aim of achieving greater consistency between courts in the imposition of sanctions.

Recent prosecutions in the last 12 months have resulted in the following sentences:

  • A waste operator sentenced to prison for a record 7½ years
  • An individual sentenced to 8 months in prison, suspended for 18 months with a 5 month electronic curfew between the hours of 7pm and 7am and an order to pay £1,500 in costs.
  • A Company and a Director were sentenced. The Company was fined £20,000. The Director was disqualified from acting as a Company Director for 5 years and ordered to pay £35,000 compensation to the landowner and carry out 250 hours of unpaid work.
  • An operator was given a 4 month custodial sentence suspended for 1 year and ordered to pay over £7,600 in costs and a remediation order was made.
  • A Company, a Director and another individual were sentenced. The Company were fined a total of £50,000 and ordered to pay costs of £18,648. The Director was ordered to pay fines of £8,000 and costs of £18,648. The individual was fined £45,000 and ordered to pay costs of £30,789.
  • A company, a Director and another individual were sentenced. The company will be sentenced after confiscation proceedings are concluded early this year. The Director was given three 12 month prison sentences to run concurrently, suspended for two years. The individual has been ordered to pay over £54,000 in fines and costs.
  • A waste company has been ordered to pay fines in the region of £1 million and costs of £243,955.35

In establishing consistency the Sentencing Guidelines provide “starting points” for the calculation of fines based on the degree of culpability of the defendant (i.e. whether the offence was committed deliberately, recklessly, negligently or whether there was low or no culpability), the extent of harm caused by the offence and for organisations, the size of the offending organisation.

Once the court has arrived at a starting point, and an appropriate range for a fine, the courts may then reduce or increase the fine with reference to various aggravating and mitigating features.

In November 2016, the Sentencing Council published a report on the impact of the sentencing guidelines on the levels of fines imposed by the courts. As expected, data collected by the Environment Agency shows that fines imposed have increased since the guidelines came into force.

The majority of cases sentenced in 201567%) were for contravening environmental permitting requirements.

The most common aggravating factor cited (noted in 43% of cases) was “offending over an extended period of time (or repeated incidents)”. Just under a third of cases (32%) cited “history of non-compliance” and a further 25% mentioned “offence committed for financial gain”.

“Evidence of steps taken to remedy problem” was the most prevalent mitigating factor, cited in 48% of cases, followed by “self-reporting, co-operation and acceptance of responsibility” (41%).

Across the board it appears that not only have the guidelines brought consistency in sentencing but also heavier sanctions both in fines, costs and other orders. In addition there appears to be an increased understanding by the courts of the gravity of the issues caused by environment offences, the impact it has on the environment and the impact on the resources of the organisations tasked with the clear up, regulation and enforcement.

Naturally, the best approach is to avoid an offence in the first place. However, the message is clear: when an offence is committed, the courts will expect to see a swift and positive response from the offender; ignoring a breach, or allowing it to continue, will only lead to greater sanction.

Nathan Holden
Partner
Freeths
0845 0779646