Court of Criminal Appeal [2010] IECCA 126

1. Summary of Facts

South East Recycling Ltd (SERL) appealed against the severity of a €350,000 fine imposed on it by the Circuit Court for a breach of its waste licence for the year 2007. SERL had also been fined in the District Court the previous year for the same breach of its 2006 licence.

2. Grounds for Appeal

SERL argued that the trial judge’s method of calculating the fine was wrong. Evidence presented to the court showed that the profit made by SERL as a result of the breach was valued at less than half of the €350,000 fine imposed.

SERL also referred to Section 10 of the Waste Management Act 1996 whereby a court must take into account the environmental impact of imposing a sentence. It was argued that the fact that there was no impact on the environment arising out of the breach of the licence should be taken into account to reduce the fine.

3. Considerations in reducing the fine

The Court of Criminal Appeal considered 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 there was no damage done to the environment, there was damage done to respect for the law – the breach was deliberate.

4. Decision, 8 November 2010

The court found that the original fine of €350,000 was too high considering the current economic climate, and that there was no evidence of environmental damage from the breach of the licence. The court decided to impose a fine that demonstrated the necessity of compliance with the law, which removed the benefit of such wrongdoing (there was some profit made) and which would deter any future breaches. The fine was therefore reduced to €200,000 together with costs.

5. Comment

It is very useful to have this guidance on the criteria to be considered by the courts when imposing fines in waste prosecutions. Under Irish Waste Legislation, the maximum penalty for conviction on indictment is a fine of €15million (and/or imprisonment of up to 10 years for individuals prosecuted) so there is a wide range of fines possible. It is increasingly common for the directors of waste companies to be pursued for waste offences individually. In the UK, directors are regularly prosecuted. In a recent case, decided in Cardiff Crown Court on 29 July 2011, fines totalling £600,000 were imposed on Able Skip Hires Ltd and its two directors, with the directors also receiving suspended prison sentences for illegally treating, storing and disposing of waste.