September 29, 2014
Go Green or Get Fined
New guidelines for environmental offences mean bigger fines for businesses, even if the case has already been resolved.
Waste not want not – a phrase that may help your company to manage waste issues in line with Environmental Protection Act 1990 – and avoid falling foul of new sentencing guidelines for environmental offences which came in unbeknownst to many businesses on 1st July 2014.
From 1 July 2014, new ‘Definitive Guidelines’ published by the Sentencing Council apply for the sentencing of various environmental offences in the Magistrate and Crown Courts, irrespective of when the offence was committed.
The range of fines has been increased to reflect an offender’s ability to pay. The aim is to ensure fines have a real economic impact and provide a stronger deterrent from re-offending.
The guidelines continue the trend set in recent case law of imposing significant corporate fines for environmental offences.
Who do the guidelines apply to?
All organisations and individuals who breach the Environmental Protection Act 1990, the Environmental Permitting (England and Wales) Regulations 2010 and certain other related offences through:
- unauthorised or harmful deposit, treatment or disposal etc of waste
- illegal discharge to air, land and water
- breach of the duty of care in relation to waste
- breach of the legislation relating to the transportation of waste
- breach of an abatement notice relating to nuisance
What will change?
Sentences for environmental offences were historically determined using a combination of sentencing principles, related guidelines and preceding court decisions.
The guidelines set out 12 steps that must be followed when sentencing for environmental offences.
Key features of the guidelines
Financial orders are made in the following sequence:
- Compensation order (in respect of any personal injury, loss or damage resulting from the offence)
- Confiscation order (if the Crown asks for it, or the Court thinks it might be appropriate)
- Fine or other financial order
The court will determine the seriousness of the offence using two factors:
- Culpability: deliberate, reckless, negligent or low/no culpability
- Harm: ranging from ‘Category 1’ (polluting material of a dangerous nature, major adverse effects to people or nature) to ‘Category 4’ (risk of minor, localised adverse effect)
Provide tables outlining the starting points and ranges for the financial orders – which will be issued in addition to compensation and confiscation orders – depending on the size of the company. The table below illustrates the starting points and ranges for a ‘deliberate’,
‘Category 1’ offence
|Size of Business||Turnover (Min Business Valuation)||Range of Fine (deliberate offence)|
|Large||£50m+ (£1m)||£450k – £3m|
|Medium||£10m – £50m (£400k)||£170k – £1m|
|Small||£2m – £10m (£100k)||£45k – £400k|
|Micro||< £2m (£50k)||£9k – £95k|
Aggravating and mitigating factors may increase or decrease the sentence and can result in the sentence falling outside of the range, particularly in the worst cases.
Aggravating factors include ignoring risks identified by employees or others, offences committed for financial gain and history of non-compliance or convictions. Mitigating factors include one off events that are not commercially motivated, effective compliance and ethics programs in place, self-reporting, co-operation and acceptance of responsibility.
The court will review the sentence as a whole to ensure that:
- Any economic benefit that was derived from the offence (for example avoided costs) has been removed
- It is proportionate to the means of the offender so as to have a real economic impact
- If the organisation is a public or charitable body, the sentence would not have a significant impact on the provision of their services
As is usual in criminal cases, there will be a reduction for guilty pleas and a duty to give reasons for the sentence. The guidelines allow a discretion to go beyond the published ranges for very large organisations, although these are not detailed in the Guidelines and a maximum fine has not been set.
What should I do?
The proportionality test in the guidance directs the court to issue a ‘sufficiently substantial’ financial order resulting in a ‘real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance’ with environmental law.
Organisations will be required to provide significant financial information to the court. In some serious cases, putting the organisation out of business may be an acceptable consequence.
Ignorance of your organisation’s obligations under environmental legislation is not accepted as an excuse.
It is important to ensure your organisation has effective policies and procedures in place to ensure compliance with environmental law.