Are you aware of the sentencing guidelines relating to environmental offences?
It is just nine months since new sentencing guidelines for environmental crime came into force and the implications for business are becoming clearer.
The guidelines cover offences such as the unlawful deposit, treatment or disposal of waste and illegal discharges to air, land and water under the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010. They also apply to those who fail to comply with an abatement notice for causing an environmental nuisance, through dust, noise, smell or smoke.
The objective of the guidelines was to make sentencing more transparent by setting tariffs for offences based initially on three key criteria:
- The environmental harm caused (category 1 being the highest and category 4 being the lowest)
- The culpability of the organisation (deliberate, reckless, negligent, or low/no culpability)
- Size of the company as determined by turnover (micro <£2m; small (£2m - £10m); medium (£10m - £50m) and large (£50m and over)
A combination of harm and culpability for each size of company then sets the starting point for a fine. Following this, the Court will take into consideration a range of aggravating and mitigating factors which will increase or lower the fine within a set range.
The effect of culpability on the starting point and range of fines for a category 1 offence committed by a large organisation is shown below:
As this shows, the starting point for a large company found guilty of a category 1 offence following deliberate action is £1m, but if the company has no, or low culpability, the starting point is considerably lower at £50,000. There is then further flexibility to increase or decrease the fine from this initial starting point. In the case of the £1m starting point, the range is £450,000 to £3m. For the low/no culpability, the range is £25,000 to £130,000. If an organisation has a history of non-compliance and ignoring identified risks, this is likely to lead to a higher fine, whereas evidence of an effective compliance management system would be a mitigating factor potentially leading to a reduced fine.
There is little detail regarding the range of fines applicable to ‘very large organisations’ except for the rather open-ended statement within the guideline: “Where a defendant company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence.”
International Workplace’s Sue Gregson recently attended a seminar in which Mark Watson, a Regulatory Law Barrister specialising in health and safety, consumer and environmental law, spoke to the United Kingdom Environmental Law Association (UKELA) East Region, providing an update on the Sentencing Guidelines.
“His analysis looked in particular at a number of recent high profile prosecutions of ‘very large organisations’ including Southern Water (turnover £806m). In this case, a sewage pump failure led to pollution of a brook and the sea with shellfish potentially affected and bathing restricted.
“The offence was category 2 with negligent culpability on behalf of Southern Water. The Judge set a starting point of £750,000 (as opposed to £140,000 for a large company) to take into account the size of the organisation. The final fine was reduced to £500,000 to take account of mitigating factors.
It appears that the level of fines has increased significantly, particularly for larger organisations, and as a result with such large sums at issue, this is likely to lead to more contested cases and appeals.”
“These guidelines potentially affect all businesses. Having an effective management system in place which is properly implemented, operated and monitored, will reduce the risk of incidents and provide significant mitigation should a prosecution occur.”
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