Legal brief: A game changer?
Simon Colvin describes the proposed new sentencing guidelines that could bring about a revolution in how courts deal with environmental offences
The Sentencing Council’s consultation on its draft guidelines for the sentencing of environmental offences was launched in March and closed on 6 June. The primary aim of the new guidelines is to increase the level of fines and ensure greater consistency when it comes to sentencing those guilty of breaching environmental legislation.
The courts are obliged to apply sentencing guidelines. Once implemented, this potentially game-changing document will mean a fundamental shift in the way the courts in England and Wales sentence environmental offences.
Heavier fines?
The headline-grabbing figure that has been most widely quoted is that fines for the most significant environmental offences by the largest companies could reach £2 million. That is a world away from the level of fines currently imposed. Controversially, the new guideline could see fines for environment crimes exceed those for health and safety offences connected with fatalities.
Regulators have been lobbying hard for the introduction of the guidelines, claiming that a perceived lack of guidance has resulted in an inconsistent approach to sentencing and fines that are too low. Currently, courts use case law to decide appropriate levels of fines, alongside limited guidance for magistrates from the council.
The proposed new tariff-based system will apply to a limited number of offences under s.33 and s.34 of the Environmental Protection Act 1990; reg.12 and reg.38 of the Environmental Permitting (England and Wales) Regulations 2010; and s.1 of the Control of Pollution Act 1989.
This gives rise to the question of whether the courts will use the final guidelines as a benchmark for sentencing other environmental offences.
Setting penalties
The tariff-based system introduces a nine-step process. Steps one to three are the most important. Step one requires the determination of the offence category. It uses existing sentencing principles and focuses on the harm caused by the offence and the culpability of the offender.
Harm is assessed by applying the Environment Agency’s common incident classification scheme (CICS). There are four categories of harm, with 1 being the most significant and 4 the least damaging. Culpability is also assessed using four categories: deliberate, reckless, negligent and low/no culpability.
The classification of offences using these categories will mean that the correct classification will be of fundamental importance. It will be vital for operators and their advisers to ensure that classifications are accurate as there will be limited scope to effectively challenge these once the “label” has been applied.
This means the agency’s role in the new sentencing process is even more key than at present. Under the new approach the agency will need to be more transparent in its classification of incidents and give clear reasons for its decisions so that operators can understand the justification for the labels it has applied. This will be very important where there is no actual harm and the classification is based instead on the risk of harm, the classification of which is much more subjective.
During the second step, the classification of the offence and the size of the company – if the offender is a corporate entity – are used to identify starting point for the level of penalty to be imposed. Companies are classed as large (those with a turnover of more than £25.9 million), medium (£6.5 million–£25.9 million) and small (less than £6.5 million).
This classification is based on the Companies Act 2006. As an example, fines for a category 1, reckless offence committed by a large company would start at a £335,000 fine, with a penalty range of £125,000–£1 million. Fines of this level are virtually unheard of at present, but they would become the norm under the new proposals.
The level of fines is an area where the planned guidelines perhaps lack sufficient detail. A business may have a high turnover, but its profits might be low.
Although it is possible in the next step for the courts to consider the means of a business and its ability to pay a fine, once it has been placed in a higher category, any later reduction is unlikely to compensate.
Also, the guidelines do not provide clarity on whether the classification relates solely to the offending organisation or, where that company is part of a larger group, a group of companies.
The third step then sees the court moving the level of fine up or down in the range based on other considerations, such as aggravating and mitigating features.
A bigger threat?
Significantly higher fines could have a number of impacts. The council is hoping that the threat of a much bigger fine will push environmental compliance up the boardroom agenda and encourage better behaviour in more companies.
Another important consideration is the special treatment of local authorities and charities. The guidelines suggest a big reduction in penalties for these offenders due to the perceived impact on the delivery of valuable public services. There is no mention of those businesses providing a quasi-public function, such as utilities firms and operators in the waste sector, being treated similarly, however.
Sentencing webinar
In conjunction with IEMA, Pinsent Masons hosted a webinar on 1 May examining the draft guidelines. If you missed it, a recording can be viewed on iema.net.