In the joined cases of R v Sellafield Ltd and R v Network Rail Infrastructure Ltd  EWCA Crim 49, the UK Court of Appeal considered the factors to be taken into account in relation to the level of fines which should be imposed on companies for environmental and health and safety offences.
Court of Appeal decision - Guidance on fines
Sellafield was fined £700,000 after pleading guilty to seven offences arising out of the disposal of radioactive waste. Network Rail was fined £500,000 for an offence arising out of a collision at an unmanned level crossing, causing very serious injuries to a man and his grandson. Both defendants appealed against the level of fines imposed.
The Court of Appeal dismissed the appeals. It referred to the general principles of sentencing in the Criminal Justice Act (CJA) 2003, which requires the court to have regard to the purpose of the fine, including punishing and rehabilitating offenders and protecting the public. It must also have regard to the culpability of the offender; the harm caused or that might foreseeably be caused; the financial circumstances of the offender; and the seriousness of the offence.
The court held that it was not appropriate to consider a fine of £1 million as apposite only to a major disaster. The court was obliged, under the CJA 2003, to have regard to the financial circumstances of the offender and that approach was also made clear in the Definitive Guideline of the Sentencing Guidelines: Council Corporate Manslaughter & Health and Safety Offences Causing Death, published in 2010. There is no ceiling on the amount of a fine that can be imposed, particularly on a very large company.
The court emphasised that the fine must be large enough to ensure that “the message is brought home to the directors and members of the company (usually the shareholders)". In considering the appropriate level of fine the court focussed, in particular, on the financial circumstances of the corporate defendants, to ensure that the fines imposed would directly affect the shareholders and directors.
Ireland - Fines for environmental offences
In Ireland, penalties for environmental offences vary depending on whether they are considered minor offences which are prosecuted in the District Court (summary offences), or more serious offences which are prosecuted (on indictment) in the Circuit Court, in front of a judge and jury. Different environmental legislation imposes various different penalties. Maximum penalties are generally €5,000 and/or up to 1 year imprisonment on summary prosecution, or €15 million and up to 10 years’ imprisonment on indictment, although no fine near this maximum level has ever been imposed. In imposing any penalty, the court will have regard to the risk or extent of environmental pollution arising from the act or omission constituting the offence.
In the case of DPP v South East Recycling Limited (30 September 2011), a waste company appealed a fine of €350,000 which was imposed for persistent breaches of the waste acceptance tonnage limits set out in its licence. The Court of Criminal Appeal held that the fine should be calculated at a level that ensures no benefit is gained by the wrongdoer, but more importantly, that provides a significant disincentive to break the law in this way. The court also noted that whilst, in this case, there was no damage done to the environment, there was damage done to respect for the law, in that the breach was deliberate. The fine was reduced to €200,000, given the economic climate at the time. Directors and other officers of the company may also be personally liable under criminal law for environmental offences, where it can be shown that the issue occurred due to their act or neglect. However, a high degree of culpability and personal involvement directly in the day to day running of the business will be required, before an individual will be personally prosecuted. The highest fine imposed to date for an environmental offence is €1 million, which was imposed on Tony Healey on 21 May 2008, in relation to illegal dumping in Wicklow.
Ireland - Fines for health and safety offences
The maximum penalties under the Health and Safety at Work Act 2005 are €3 million and/or 2 years’ imprisonment. Managers and directors can also be made personally liable and proceeded against directly for failures. If a company is found guilty of an offence, there is a presumption that directors and managers are also guilty unless they can prove otherwise. There is little consistency in sentencing in fatal accident prosecutions, leading to calls for guidelines on sentencing to be introduced.
In the past 2 years for example, fines have ranged from a €25,000 fine for a stevedoring company following the death of a 3 year old boy at Drogheda Quay; a €1 million fine for a transport company, whose health and safety failures lead to a road accident causing the death of 2 people and the injuries of several others; a €40,000 fine imposed on a construction company for breaches of the construction regulations which led to the death of a member of the public; and a €300,000 fine for a pharmaceutical company following the death of one of its employees. In general, however, courts will look at the level of culpability (including for example whether risks were taken to save money, or there were previous incidents or "near misses" which were not addressed), the means of the offender, and conduct both before and after the incident (for example whether measures have been introduced to prevent a recurrence).