There has long been a concern about the lack of guidance available to the courts in the UK (especially, magistrates’ courts) when it comes to sentencing for environmental offences, in comparison to other crimes (such as theft or assault). This has meant that similar examples of environmental wrongdoing have received greatly varying levels of fines and custodial terms depending on where the defendant has been sentenced, with some punishments arguably not reflecting the seriousness of the harm caused.
In response, on 14 March, the Sentencing Council launched a consultation (which runs until 6 June) on a draft set of sentencing guidelines for the two sets of environmental offences most frequently encountered by the courts: waste offences under section 33 of the Environmental Protection Act 1990 (such as fly-tipping) and offences of operating a regulated facility or of discharging to water or groundwater without an environmental permit under regulations 12 and 38 of the Environmental Permitting (England and Wales) Regulations 2010.
The draft guidelines set out a nine-step procedure for a court considering sentencing under one of these offences:
1 – What are the principal characteristics (i.e. harm and culpability) of the offence?
2 – The court should ensure that the fine reflects not only the elements of step 1, but also the financial means of the defendant and any aggravating or mitigating factors.
3 – Are there any factors which would merit adjustment of the fine (e.g. the impact of any fine upon the defendant’s employees)?
4 – Are there any factors which indicate a reduction, such as assistance given to the prosecution?
5 – The court should consider some reduction for a ‘guilty’ plea.
6 – The court must consider making a compensation and/or ancillary order, such as an order to carry out remediation work or a director’s disqualification order.
7 – If the court is sentencing the defendant for more than one offence, what would be the effect of this punishment upon the cumulative weight of the sentence?
8 – The court must give reasons for the level of the sentence.
9 – The court must consider whether to give credit for any time spent on bail.
It is almost inevitable that the courts will, initially, require additional time to consider the steps and this may lead to a delay in sentencing for the first cases that utilize the guidelines.
The Sentencing Council has stated that it expects the level of fines for the most serious cases will increase, but that fines for less serious offences will remain the same. The draft guidelines contain tables which set out ranges of punishments which are calculated by reference to the degree of culpability, the severity of harm caused and the size of the defendant (if a body corporate) or whether the defendant is an individual. For offences involving deliberate wrongdoing and resulting in the most serious harm, the starting point for large companies will be a fine of £750,000. This is despite the fact that this figure is 2-3 times greater than the highest recorded fine yet handed down under s.33 of the 1990 Act. Also, the vast majority of environmental offences (even high profile litigation, such as that after the Buncefield explosion in 2005) involve negligent or reckless, rather than deliberate, behaviour, so the top ends of the scales will rarely be visited.
Some commentators believe that, by limiting the guidelines to just two offences, the Sentencing Council has missed an opportunity to introduce general guidelines for sentencing for all environmental crime. Of course, this does not rule out the possibility that, if the guidelines are successful, their application may be extended to other offences in future.