The Sentencing Council has launched a consultation on draft guidelines for environmental offences, with a view to ensuring that the level of fines imposed by magistrates’ courts and Crown Court better reflects the seriousness of the offence committed and that the courts take a more consistent approach to sentencing environmental offences generally. As they stand, the new guidelines will apply principally to the main waste offences and to offences of carrying out activities without an environmental permit. The Sentencing Council has indicated that, as a consequence of adoption of the new guidelines, it expects that the level of fines will increase more serious offences, but that fines for less serious offences will remain the same. The consultation closes on 6 June 2013.

Following research, the Sentencing Council identified there was limited guidance on sentencing environmental offences. It has therefore produced draft guidelines for consultation and is seeking views on the principle factors that make an environmental offence more or less serious, the additional factors that should influence the sentence and the sentences that should be given for environmental offences.

It is proposed that the guidelines apply to the environmental offences committed under section 33 of the Environmental Protection Act 1990 (ie waste offences) and regulations 12 and 38(1)-(3) of the Environmental Permitting (England and Wales) Regulations 2010 (ie offences of operating a regulated facility or of discharging to water or groundwater without an environmental permit). These particular offences are targeted on account of their relatively high volume in the courts and the relatively high statutory maximum fine that applies on conviction.

Specifically, the consultation seeks views on a nine-step process for deciding the level of fines, ranging from determining the harm caused and culpability attaching to the offence and the size of the organisation involved through to considering any aggravating factors or those that apply in mitigation and a consideration of whether the total sentence is just and proportionate to the offending behaviour.

Importantly, the guidelines set out what is considered a large or small organisation. Corresponding tables for the level of fines that can be expected as a result of size are also provided. For example, an organisation with a ‘large’ turnover is defined as one having a turnover (or equivalent) of more than £25.9m. The most serious category of offence, an offence that sees category one harm being caused deliberately, has a proposed starting point of a £750,000 fine and a fine range of £270,000 to £2m. In contrast, the least serious offence, an offence committed with no culpability, which caused category four harm, has a starting point fine of £3,000 and a fine range of £1,000 to £5,000.

The consultation does not signify any changes in the law. However, any conclusions reached are likely to have a significant impact on businesses that find themselves convicted of environmental offences.