Until 6 June 2013 the Sentencing Council, the independent body responsible for developing sentencing guidelines for the criminal courts in England and Wales, is consulting on a draft guideline for the sentencing of specified environmental offences. The purpose of the guideline is to develop a consistent approach to sentencing of the offences. Any responses should be sent to the Office of the Sentencing Council.

The guideline is being proposed due to the limited amount of guidance presently available. The Council considers that the guideline will provide clarity on the setting of fines in particular for corporate offenders.

Proposed Application

The offences covered are:-

  • The unauthorised deposit of waste or harmful deposit, treatment or disposal of waste under Section 33 of the Environmental Protection Act 1990; and  
  • Illegal discharges to air, land and water, including operating without a permit, contravention of a permit condition and non compliance with enforcement notices, under Regulations 12 and 38(1),(2) and (3) of the Environmental Permitting (England and Wales) Regulations 2010 (as amended).

The offences are triable either way (either in the Magistrates’ Court or in the Crown Court) and chosen due to their relatively high volume and range of penalties.

For 3 other offences for which the courts have lower sentencing powers it is intended that the same sentencing approach in steps 1 to 3 below shall apply but in line with appropriate statutory limits.

  • Transportation of controlled waste without registering (section 1 Control of Pollution Amendment Act 1989)  
  • Breach of duty of care (section 34 Environmental Protection Act 1990); and  
  • Breach of an abatement notice (section 80 Environmental Protection Act 1990).

It is intended that the guideline will apply to all offences it covers regardless of the date of the offence.

Consultation

Views are sought on:-

  • the principal factors that make an environmental offence more or less serious;  
  • the additional factors that should influence the sentence;  
  • the sentences that should be given for environmental offences; and
  • anything else which should be considered.

Decision-making Process

The guidelines set out a step-by-step decision-making process to follow when sentencing. 9 steps arrive at the application of a tariff specifying ranges of penalty. The first 3 steps are considered below.

(i) Step one: the offence category

The court must determine the harm caused and the culpability of the offender in order to categorise the offence. ‘Harm’ is the damage or loss caused or risks to the environment, individuals or society. Four categories of harm are proposed based on the Environment Agency’s Common Incident Classification Scheme, familiar to many. The most serious is category 1 and the least serious is category 4. Comments are sought also if the approach were to treat risk of harm and actual harm as the same at step one. A distinction thereafter would be drawn at step two where risk of harm (rather than harm) would be a mitigating factor. Culpability has 4 categories: deliberate, reckless, negligent or “low or no culpability”. The 2 components determine the starting point and the proposed range for the level of fine.

(ii) Step two: starting point and category range

The guideline sets out the way in which the court should assess the seriousness of the offence and the financial means of the offender. Where the offender is an individual unless financial information is supplied to the contrary the court may conclude the offender is able to pay any fine imposed. Companies and bodies delivering public and charitable services would be expected to provide accounts for the last 3 years failing which the court shall be entitled to draw reasonable inferences from evidence. The court must then consider aggravating and mitigating factors relating to the wider circumstances of the offence.

(iii) Step three: consider whether there are any further factors that warrant adjustment of the fine.

Step three identifies a non exhaustive list of factors which may require adjustment to the fine in order to fulfil, in a fair and proportionate way, the objectives of punishment, deterrence and removal of gain obtained by committing the offence. It is intended that where the fine will fall on public or charitable sector there will be the ability to substantially reduce the level of fine. As regards corporate offenders the consultation states that the fine must be substantial enough to have a real economic impact to encourage compliance. Where an offender derives an economic benefit the full amount of economic benefit should be included in the fine (including avoided costs and operating savings).

Steps four to nine take into account factors including assistance to the prosecution, guilty pleas, compensation and ancillary orders and multiple sentencing.

Tariff ranges

The tariff range differs depending on organisation size. ‘Large’ equates to a turnover or equivalent (such as the annual revenue budget) of over £25.9m, medium as between £6.5m and £25.9m and small as not more than £6.5m. An extract from the tables of the ranges and starting point for the most serious harm and highest culpability is below.

Size of organisation Large Medium Small

Range for most serious offence & £270,000- £2m £90-£690,000 £9-£70,000 highest culpability The proposed starting point £750,000 £250,000 £25,000

There are also tariffs for individuals. Implications

The consultation is important and should not be viewed in isolation. Some considerations arise.

  1. The manner of assessing seriousness of harm for sentencing purposes: It is not clear how prior classification of harm by the Environment Agency or Natural Resources Wales shall be dealt with by the courts in forming their assessment. In the first instance the classification of incidents will have informed the scoring on compliance assessment forms and subsequently the enforcement action i.e. the prosecution (rather than a caution or warning). The Regulator's classification is usually administered by site inspectors and the enforcement decision is made also by the Regulator. In the absence of other legal processes there is no wholly independent appraisal of the classification or the enforcement response until potentially at trial. If there is concern about the classification adopted by a Regulator on a compliance assessment form, it will be important that representations are made in a timely and well considered manner.  
  2. Changes in legislation also mean that in the future the Magistrates’ courts may not be restricted by present statutory sentencing limits and together with the proposed guideline shall have far more sentencing capability. The proposed tariff and the starting points should be carefully reviewed with this in mind.  
  3. There has been significant delay to the introduction of civil sanctions for many environmental offences including the environmental permitting regime which in certain instances would provide another alternative to prosecution. Given pressure on court resources and the costs of prosecution it is to be hoped that consideration of civil sanctions by Government will be given equal consideration so that those before the courts are in fact the most appropriate candidates.

Please click here to view the Consultation

Sarah Day