New guidelines for environmental prosecutions.
The Sentencing Council has published a definitive guideline for appropriate sentences for environmental prosecutions, following concerns that sentences lacked consistency and were generally too light.
The new guidelines specifically relate to offences regarding an unauthorised or harmful deposit, treatment or disposal of waste and illegal discharges to the air, land and water. However they are likely to be referred to by courts dealing with other environmental prosecutions.
The new sentencing guidelines apply to all sentencing hearings taking place after 1st July 2014, regardless of when the actual offence took place.
When conducting a sentencing exercise for environmental prosecutions, a court will usually be looking at a financial penalty. They will always take into consideration the means of the defendant. When a defendant has limited means, the courts will always prioritise financial orders as follows:
1) Compensation
The court will consider if a compensation order is necessary for any personal injury, loss or damage caused by the offence.
2) Confiscation
This is an order designed to deprive a defendant of the proceeds of their crime and can only be made by a Crown Court.
3) Fine
This is the most common sentence for environmental prosecutions. When determining the amount of an appropriate fine, the court will take the following steps:
a) Determining the offence category.
The court will consider the offence category by reference to the culpability and harm factors.
When considering culpability, the court will consider if the risks were deliberate, reckless, negligent or with low or no culpability.
When considering risk of harm, a polluting material of a dangerous nature which caused a major adverse effect or damage, resulting in a major interference, will be at the top end of the scale. A minor localised adverse effect will be at the bottom end of the scale of seriousness.
b) Starting point and category range for fine
The court will consider the financial records of an organisation to determine the appropriate starting point for any fine in an environmental prosecutions. The purpose of the fine is to punish the organisation and send a message to directors and shareholders that they need to improve and take seriously regulatory compliance. The fine is also designed to ensure that it is not cheaper for organisations to risk a fine rather than incur the costs of complying with environmental regulations.
The individual circumstances and size of the organisation are obviously critical considerations for the Court. A fine that would collapse an SME may barely dent the finances of a large PLC. The Court will therefore consider the turnover of the organisation and decide if they are a large, medium, small or micro organisation.
c) Further adjustments to the fine
Once the starting point for the fine has been determined, the court will consider if any further adjustments are appropriate, to take into account any specific aggravating and mitigating factors.
d) Proportionate
The Court will then ensure that the combination of financial orders is appropriate and proportionate and that appropriate reductions are made for guilty pleas.
Having expert legal defence for environmental prosecutions will make a significant difference to the outcome in court. At Richard Nelson LLP, our lawyers regularly advise organisations and individuals who face investigations and we defend environmental prosecutions by the Environment Agency. Please contact one of our regulatory investigation lawyers for further help.
Marie Dancer, Partner, Richard Nelson LLP
If you would like more information regarding our Environmental Law services, you may want to read our dedicated service page. Alternatively, you can contact us directly to speak to one of our specialised team today.